Vishak K.C. v. State of Kerala and The Station House Officer, Changanacherry Police Station, Kottayam District

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 2[ND] DAY OF MARCH 2023/11TH PHALGUNA, 1944 ``` ``` BAIL APPL. NO.1017 OF 2023 ``` ``` CRIME NO.3430/2022 OF CHANGANACHERRY POLICE STATION, ``` ## **`KOTTAYAM DISTRICT`** ## **`PETITIONER/ACCUSED NO.1:`** ``` VISHAK K.C., AGED 23 YEARS, S/O.LALICHAN , KARIYADIL HOUSE, THURUTHY P.O., ``` ``` VAZHAPPALLY WEST VILLAGE, CHANGANACHERRY TALUK, KOTTAYM DISTRICT., PIN – 686535. ``` ``` BY ADV. SRI.K.SHAJ ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ``` ``` ERNAKULAM DISTRICT,PIN – 682031. ``` - `2 THE STATION HOUSE OFFICER, CHANGANACHERRY POLICE STATION, KOTTAYAM DISTRICT., PIN – 686101.` ``` BY ADV. SMT.T.V.NEEMA, SR.PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. No.1017 of 2023 ``` 2 ## **`O R D E R`** ## **`Dated, this the 2[nd] March, 2023`** ``` This is a petition filed under Section 439 of the Code of Criminal Procedure and the petitioner is the 1[st]accused in crime No.3430/2022 of Changanassery Police Station, Kottayam, where accused Nos.1 to 3 alleged to have committed offences punishable under Sections 323, 341, 324, 326, 307 read with Section 34of Indian Penal Code and the petitioner seeks regular bail. ``` ``` 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. ``` ``` 3.Perusedtherelevantdocuments including the treatment records placed by the learned Public Prosecutor forming part of the Case Diary. ``` ``` 4. The prosecution allegation is that at about 10:30 p.m. on 25.12.2023, the accused ``` 3 ## **`B.A. No.1017 of 2023`** ``` herein assaulted the defacto complainant and his friends namely, Lijo and Sony, with intention to commit murder after sharing common intention. The specific allegation is that the 1[st] accused caused cut injuries on the face of the defacto complainant by using a hand axe and the 3[rd] accused beat on his face repeatedly. The allegation against the 2[nd] accused is that he slapped on the face of the defacto complainant, while accused Nos.1 to 3 were jointly attacking the defacto complainant with intention to commit his murder. Thus the defacto complainant sustained multiple fractures and serious injuries. In this context, the prosecution alleges commission of the above offences. ``` ``` 5.While canvassing regular bail to the petitioner, the learned counsel for the petitioner submitted that the petitioner is innocent. According to him, there occurred attack and counter attack and petitioner also ``` ## **`B.A. No.1017 of 2023`** 4 ``` sustained very serious injuries. In support of this contention, the learned counsel for the petitioner, placed reliance on Annexure-A2 showing Type II open fracture neck of Fibula Right and Common Peroneal Nerve injury right, to the petitioner and the treatment he underwent ``` ``` as on 26.12.2022 i.e., on the next day of occurrence. Highlighting the progress of investigation and prolonged custody of the petitioner from 03.01.2023, the learned counsel canvassed regular bail. ``` ``` 6.Whereas, the learned Public Prosecutor strongly opposed the bail highlighting two reasons. The first reason pointed out by the learned Public Prosecutor is that the main overt act in this occurrence is the volition of the 1[st] accused, since he used a hand held axe to beat on the face of the defacto complainant and the same caused multiple injuries including multiple fractures. It is submitted further that though ``` 5 ## **`B.A. No.1017 of 2023`** ``` thedefactocomplainantsurvived,the prosecution allegation as to commission of offences inclusive of one under Section 326 and 307 of IPC, is well made out and the investigation is going on. In such a case, grant of bail to the petitioner at this stage would be fatal to the investigation. Secondly, it is argued that the petitioner is a person having criminal antecedents and he was booked under Section 15(1) of KAPPA. The following are the crimes, where the involvement of the 1[st] accused has been reported. ``` `1. Changanassery PS Cr.2005/2019 U/s.341, 294(b), 324, 326, 308, 34 IPC.` `2. Cr.1927/2021 U/s.447, 294(b), 427, 506(ii), 34 IPC.` `3. Cr.2203/2021 U/s.447, 427, 506(ii), 34 IPC.` ``` 7.On perusal of the Case Diary materials, the specific allegation against the 1[st] accused is that he caused cut injuries on the face of the defacto complainant by using a hand held axe ``` 6 ## **`B.A. No.1017 of 2023`** ``` and, thereby, the defacto complainant sustained multiple injuries and multiple fractures as detailed hereunder:- ``` ``` --Multiple Craniofacial Fracture. ``` ``` --Fracture in left high parietal bone associated with minimal pneumocephalus. ``` ``` --Linear displaced fracture involving bony nasal septum. ``` ``` --Linear nondisplaced fracture involving bilateral nasal bones and right frontal process of maxilla. ``` ``` 8.In-patient treatment for a period from 26.12.2022 to 29.12.2022, also could be gathered from the discharge summary. It is true that as per Annexure-A2, the petitioner also sustained injuries including fracture as pointed out by the learned counsel for the petitioner. However, the same is not a justification to hold that the petitioner's complicity in this matter is less, as the prosecution case is well made out and on completion of investigation, final report also filed. ``` ``` 9.The criminal antecedents of the ``` ``` B.A. No.1017 of 2023 ``` 7 ``` petitioner as extracted herein above, would go to show that the petitioner has least respect to law and he has been involving in crimes one after another. Since the investigation reached finality and the final report already filed, the further custody of the petitioner for the purpose of investigation, is not necessary. However, the attitude of the petitioner in committing repeated crimes, is a matter of serious concern and, therefore, he can be released on bail by imposing stringent conditions and one among the conditions is that he shall not involve or indulge in any crime during the currency of bail hereby granted and any such event, if reported or came to the notice of this Court, the same alone shall be a reason to cancel the bail hereby granted. ``` ``` 10.Accordingly, this petition stands allowed and the petitioner is enlarged on bail on the following conditions: ``` ``` B.A. No.1017 of 2023 ``` 8 - _`i. The 1[st] accused/petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Jurisdictional court, concerned.`_ - _`ii. The petitioner shall not intimidate the witnesses or tamper with evidence.`_ - _`iii. The petitioner shall co-operate with the investigation and shall be available for trial. He shall appear before the Investigating Officer on every Tuesday in between 9 a.m and 12 noon, from the date of release on bail, for a period of two months or till the final report will be filed, whichever occur first.`_ - _`iv. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court or to any police officer.`_ - _`v. The petitioner shall not leave India without permission of the Jurisdictional Court.`_ - _`vi.The petitioner shall not involve in`_ 9 ## **`B.A. No.1017 of 2023`** ``` any other offence during the currency of bail and any such event, if reported or came to the notice of this court, the same shall be a reason to cancel the bail hereby granted. ``` ``` Sd/- ``` ``` A.BADHARUDEEN, JUDGE. ``` ## `ww` ``` B.A. No.1017 of 2023 ``` 10 ## **`APPENDIX OF BAIL APPL. 1017/2023`** ``` PETITIONER’S ANNEXURES: ``` ``` ANNEXURE A1 ``` ``` THE TRUE COPY OF THE FIR DATED 26/12/2022 IN CRIME NO.3430/2022 OF CHANGANACHERRY POLICE STATION, KOTTAYAM. ``` ``` ANNEXURE A2THE TRUE COPY OF THE DISCHARGE SUMMARY DATED 26/12/2022 ISSUED FROM ST.THOMAS HOSPITAL, CHETHIPUZHA. ``` ``` ANNEXURE A3THE TRUE COPY OF THE COMPLAINT DATED 28/12/2022 FILED BY THE PETITIONER'S FATHER BEFORE THE DISTRICT POLICE CHIEF, KOTTAYAM DISTRICT. ``` ``` Annexure A4 ``` ``` THE CERTIFIED COPY OF THE ORDER IN CRIMINAL M.P NO118/2023 DATED 18/01/2023 OF THE HON'BLE SESSIONS COURT, KOTTAYAM. ``` ``` B.A. No.1017 of 2023 ``` 11 ## **`APPENDIX OF BAIL APPL. 1017/2023`** ``` PETITIONER ANNEXURES ANNEXURE A1THE TRUE COPY OF THE FIR DATED 26/12/2022 IN CRIME NO.3430/2022 OF CHANGANACHERRY POLICE STATION, KOTTAYAM ANNEXURE A2THE TRUE COPY OF THE DISCHARGE SUMMARY DATED 26/12/2022 ISSUED FROM ST. THOMAS HOSPITAL, CHETHIPUZHA ANNEXURE A3THE TRUE COPY OF THE COMPLAINT DATED 28/12/2022 FILED BY THE PETITIONER'S FATHER BEFORE THE DISTRICT POLICE CHIEF, KOTTAYAM DISTRICT. Annexure A4THE CERTIFIED COPY OF THE ORDER IN CRIMINAL M.P NO118/2023 DATED 18/01/2023 OF THE HON'BLE SESSIONS COURT, KOTTAYAM ```