Vishnu Rathan @ Vishnu Dathan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 ``` ``` BAIL APPL. NO. 4354 OF 2024 ``` ``` CRIME NO.347/2024 OF NARAKKAL POLICE STATION, ERNAKULAM ``` ``` PETITIONER/ACCUSED NO.1: ``` ``` VISHNU RATHAN @ VISHNU DATHAN, AGED 31 YEARS, ARAKKATHARA, NAYARAMBALAM, ERNAKULAM DISTRICT, PIN - 682509 ``` ``` BY ADVS. SRI.P.V.VIBIN SRI.HABEEBA MOOSA ``` ## **`RESPONDENTS/STATE AND COMPLAINANT:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER, NJARAKKAL POLICE STATION, ERNAKULAM, PIN - 682505`** ``` BY SMT.SEETHA S, SR.PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 17.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.4354 of 2024 ``` ``` 2 ``` ## **`ORDER`** ## **Dated this the 17[th] day of July, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the 1[st] accused in Crime No.347/2024 of the Narakkal Police Station, Ernakulam, which is registered against the accused (five in number) for allegedly committing the offences punishable under Sections 143, 147, 341, 323, 324, and 326 read with Section 149 of the Indian Penal Code, 1860 (for short ‘the IPC’). 3. The essence of the prosecution case is that: on 23.03.2024, at around 22.00 hours, the accused, in prosecution of their common intention, had formed themselves an unlawful assembly and the 1[st] accused ``` B.A.No.4354 of 2024 ``` ``` 3 ``` removed the key of the motorcycle and when the defacto complainant was attempting to leave the 1[st] accused slapped him on his face. Thereafter, the accused 2 and 3 assaulted him on the various parts of his body. The 2[nd] accused kicked him with the leg and the other accused hit him with hands. One of the accused had stabbed the defacto complainant with a beer bottle, whose tooth was broken. Thus, the accused have committed the above offences. 4. Heard; Sri.P.V.Vibin, the learned counsel appearing for the petitioner and Smt.Seetha S, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. A reading of Annexure-A1 First Information Report would substantiate that the offence under Section 326 IPC cannot be attributed against the petitioner. The only ``` B.A.No.4354 of 2024 ``` ``` 4 ``` overt act alleged against the petitioner is that he removed the key of the motorcycle and slapped the defacto complainant. The allegation of stabbing the defacto complainant with beer bottle is not attributed against the petitioner. Hence, the petitioner’s custodial not and no interrogation is necessary, recovery is to be effected. Therefore, the application may be allowed. 6. The learned Senior Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She stated that one among the accused had assaulted the defacto complainant with a beer bottle and his tooth got broken. She made available the accident register cum wound certificate issue by the Taluk Hospital, Narakkal dated 24.03.2024 to substantiate her assertions. Nonetheless, she did not dispute the fact that the specific overt act alleged against the ``` 5 ``` ## **`B.A.No.4354 of 2024`** petitioner is that he removed the key of the motorcycle and slapped the defacto complainant with his hands. 7. On an overall appreciation of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the allegation attributed against the petitioner may not attract the offence under Section 326 of the IPC, though that is a matter to be investigated and decided at the time of the trial, I am satisfied that the petitioner has made out satisfactory grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. In the result, the application is allowed subject to the following conditions: - (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. ``` B.A.No.4354 of 2024 ``` ``` 6 ``` - (ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) 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 Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before said court within the said period; ``` 7 ``` ## **`B.A.No.4354 of 2024`** - (vi) The petitioner shall not get involved in any other offence while on bail; - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) 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 petitioners even while the petitioners are 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]. ``` 8 ``` ## **`B.A.No.4354 of 2024`** - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- **C.S.DIAS** **JUDGE** NAB