Viju Viswambaran v. State of Kerala

1 Bail Application No. 5 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 BAIL APPL. NO. 5 OF 2024 CRIME NO.936/2023 OF Punalur Police Station, Kollam ``` ## **`PETITIONER/S:`** ``` VIJU VISWAMBARAN AGED 45 YEARS S/O VISWAMBARAN, MULLASSERIL VEEDU, KAKKODE P O, PUNALUR, KOLLAM DISTRICT -, PIN - 691331 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.NEEMA T.V, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 5 of 2024 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No. 5 of 2024** ## **-----------------------------------** ## **Dated this the 10[th] day of January, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in crime No.936/2023 of the Punalur Police Station, registered against the petitioner alleging him to have committed the offences punishable under Secs.294(b), 324, 326 and 307 read with Sec.34 of the Indian Penal Code. The petitioner was arrested on 26.12.2023. 2. The prosecution case, in brief, is that: On 28.5.2023 at 12.30 a.m, without any provocation, the 3 Bail Application No. 5 of 2024 accused out of his personal grudge uttered obscene words to cause annoyance to the defacto complainant and struck on his left knee joint with a chopper and fractured his leg bone while the second accused struck on the left hand of the defacto complainant thereby causing injury on his left middle finger. Furthermore, the first accused hit on the forehead of one Nithin and the right knee joint of one Sajikumar and caused grievous injuries to them. Thus, the accused have committed the above offences. 3. Heard; Sri.S.Rajeev, the learned counsel appearing for the petitioner and Smt.Neema T.V, the learned Public Prosecutor appearing for the respondent. 4 Bail Application No. 5 of 2024 4. The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. In fact, it was the defacto complainant and others who trespassed into the house of the petitioner and attacked the petitioner and his friend Sumesh, who succumbed to injuries in the said incident and pursuant to which Annexure-IV FIR was registered on 28.5.2023 at 18:16 hours. The investigation in the case has been completed and Annexure-I final report has already been laid before the jurisdictional Magistrate. It is as a counterblast to the above proceeding, the defacto complainant has lodged Annexure-II FIR on the same day at 19.05 hours. The 5 Bail Application No. 5 of 2024 allegations in the Annexure-II FIR are totally false. There is no grievous injury caused to the defacto complainant as alleged in Annexure-II. The petitioner has been languishing in custody since 26.12.2023. The investigation in the case is practically complete. The very fact that the Police have laid Annexure-I final report before the jurisdictional Magistrate in respect of the case in which the petitioner and his friend were injured and his friend lost his life shows that nothing further is to be investigated in the matter. Hence, the petitioner is entitled to be released on bail. 5. The learned Public Prosecutor vehemently opposed the application. She contended that the 6 Bail Application No. 5 of 2024 investigation is still in progress. She stated that the petitioner had caused grievous hurt to the defacto complainant and two others. If the petitioner is let off on bail, there is every likelihood of a law and order problem in the locality. She made available copies of the wound certificates of the injured in the above crime. Hence, the application may be dismissed. 6. On an analysis of the materials placed on record, it is evident from Annexure-IV FIR, which was registered at the first instance that the petitioner and one Sumesh were attacked by the defacto complainant and others on 28.5.2023. It is evident from Anexure-I final report that the said Sumesh lost his life on 3.6.2023 in 7 Bail Application No. 5 of 2024 the incident arising out of Annexure-IV FIR. Subsequent to the registration of Annexure-IV FIR, Annexure-II FIR was registered at 19.05 hours. I have also gone through the accident-cum-wound certificates of the three injured in Annexure-II FIR namely, Sajikumar, Aravindakshan and Chikku. The wound certificates are dated 28.5.2023 issued by the Taluk Headquarters Hospital, Punalur. The said wound certificates prima facie show that the injured have sustained only lacerated injuries and wounds. Moreover, it is evident from Annexure-I final report that the investigation arising out of Annexure-IV FIR is complete and the final report has already been laid. 8 Bail Application No. 5 of 2024 Annexure-II FIR is the subsequently registered FIR arising out of the counter incident. Indisputably, the petitioner has been in custody since 26.12.2023. 7. After bestowing my anxious consideration to the materials placed on record and in the light of discussion made above, I am of the definite view that the continued detention of the petitioner is unnecessary. Therefore, the petitioner is entitled to be enlarged on bail, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to 9 Bail Application No. 5 of 2024 the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: - (i) The petitioner shall appear before the Investigating Officer on every alternate Saturday between 9 a.m. and 11 a.m for a period of one month or till the final report is laid, whichever is earlier. And he shall also appear before the Investigating Officer as and when required; - (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any 10 Bail Application No. 5 of 2024 Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation 11 Bail Application No. 5 of 2024 of bail, if any filed, and pass orders on the same, in accordance with law. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. sks/10.1.2024 sd/- **C.S.DIAS, JUDGE** 12 Bail Application No. 5 of 2024 ## **`APPENDIX OF BAIL APPL. 5/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure IA COPY OF THE FINAL REPORT IN CRIME NO 935/2023 Annexure IIA COPY OF THE FIR & FIS IN CRIME NO 936/2023 REGISTERED BY PUNALUR POLICE, KOLLAM DISTRICT ``` ``` Annexure IIIA CERTIFIED COPY OF THE ORDER DATED 26.12.2023 IN CMP NO 8042/2023 IN CRIME NO 936/2023 OF PUNALUR POLICE STATION ``` ``` Annexure IVA COPY OF THE FIR DATED 28.05.2023 IN CRIME NO 935/2023 ``` ``` Annexure V5. THE WOUND CERTIFICATE IN RESPECT OF SUMESH WHO DIED IN THE INCIDENT ``` ``` Annexure VIA COPY OF THE POST MORTEM CERTIFICATE WITH RESPECT TO SUMESH DATED 04.06.2023 ```