Vijith Raj B and Sanath Kumar K v State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 BAIL APPL. NO. 508 OF 2024 CRIME NO.57/2024 OF KASARAGOD POLICE STATION, KASARGOD ``` ## **`PETITIONERS/ACCUSED 1 AND 2:`** ``` 1 VIJITH RAJ B, AGED 36 YEARS S/O BHASKARAN, NEAR DURGA PARAMESWARY TEMPLE, ,MEEPUGIRI, RD NAGAR, KUDLU VILLAGE, KASARAGOD, PIN - 671121 2 SANATH KUMAR K, AGED 45 YEARS S/O SUSHEELA, SANATH VIHAR, NEAR UMA NURSING HOME, LELUGIDDE ROAD, KASARAGOD, PIN - 671121 BY ADV K.V.SABU ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.02.2024, ``` ``` THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B. A No.508 of 2024 2 **Dated this the 14[th] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure by the accused 1 and 2 in Crime No. 57/2024 of the Kasaragod Police Station, Kasaragod, registered against them (two in number) for allegedly committing the offences punishable under Sections 323, 324 and 307 r/w 34 of the Indian Penal Code. The petitioners were arrested on 13.01.2024. 2. The crux of the prosecution case is that: on 12.01.2024 at about 20.30 hours, the accused, in furtherance of their common intention, voluntarily caused hurt to the injured by hitting with an iron rod and soda bottle. The injured suffered grievous injuries and was admitted to the Intensive Care Unit. The accused attempted to commit the murder of the injured. Thus, the accused have committed the above offences. B. A No.508 of 2024 3 3. Heard Sri.K.V Sabu, learned counsel appearing for the petitioners and Sri.C.S. Hrithwik., the learned Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. In fact, it was the injured who attacked the petitioners with the soda bottle and caused injuries to them. There is a counter registered against the injured by the very same police. The petitioners have been in judicial custody since 13.01.2024, which is more than 31 days. The investigation in this case is practically complete, and the recovery has been effected. Hence, the petitioners may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. He submitted that the petitioners have caused grievous injuries to the injured. He made available the treatment records of the injured 4 B. A No.508 of 2024 in the Indiana Hospital & Heart Institute Ltd., Mangalore, dated 30.01.2024, to substantiate the fact that the injured had suffered: 1) the fracture of the left external auditory canal; 2) the fracture of the right great trochanter of the femur, 3) subarachnoid haemorrhage right temporal lobe of the brain; 4) haemorrhagic contusions in the right frontal lobe of the brain, 5) haematoma over the left temporal region of the scalp; and also other lacerated injuries. The injuries 1, 2, 3 and 4 mentioned in the wound certificate are grievous in nature. The petitioner was admitted to the hospital on 12.01.2024 and was discharged after the surgery on 14.01.2024. The investigation in the case is still in progress. The petitioners are history sheeters. The first petitioner is involved in nine other crimes, out of which three are of the years 2021 and 2022 under the IPC. He contented that if the petitioners are let off on bail, there is every likelihood of them intimidating the witnesses and tampering with the evidence. Hence, the bail B. A No.508 of 2024 5 application may be dismissed. 6. On an evaluation of the facts, the materials placed on record, the rival submissions made across the bar, especially after going through the treatment records of the injured and the report filed by the Investigating Officer, I find that the accusations levelled against the petitioners are severe, grave, and serious in nature. The report shows that the first petitioner is involved in nine other cases, out of which three are of the year 2020. As regards the second petitioner, there is one crime registered against him. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Another** [(2010) 14 SCC 496], in paragraph 9, the Honourable Supreme Court has observed as follows: “9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; B. A No.508 of 2024 6 - (ii) nature and gravity of the accusation: - (iii) severity of the punishment in the event of conviction; - (iv) danger of the accused absconding or fleeing, if released on bail; - (v) character, behaviour, means, position and standing of the accused; - (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.” ## 8. Again, the Honourable Supreme Court in **Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another** [AIR 2004 SC 1866] has held thus: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. It is also necessary for the Court granting bail to consider among other B. A No.508 of 2024 7 circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge. See Ram Govind Upadhyay v. Sudarshan Singh and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)”. 9. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and in view of the findings rendered above, I am of the definite view that the petitioners are not entitled to release the petitioners at this stage. I hold the application is meritless, and it is only to be dismissed. Resultantly, the application is dismissed. Sd/- **C.S.DIAS, JUDGE** mtk/14.02.24 B. A No.508 of 2024 8 ## **`APPENDIX OF BAIL APPL. 508/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1 ``` ``` ORIGINAL OF THE ORDER DT.15.1.2024 IN C.M.P NO.96/2024 PASSED BY THE LEARNED JFCM COURT-I, KASARAGOD ```