High Court of KeralaSingle Judge2024-03-27Granted pre-arrest bail

VIVEK K.S v. STATE OF KERALA

Case / Petition Number:BAIL APPL. NO. 2273 OF 2024

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.Dias
Judgment Date: 2024-03-27
Court Decision / Holding: The bail application is allowed; the petitioner is granted pre-arrest bail subject to conditions including surrender before the Investigating Officer within ten days, production before the jurisdictional court upon arrest, furnishing a Rs. 50,000 bond with two solvent sureties of Rs. 50,000 each, cooperation with the investigation, no witness intimidation, no subsequent offences, and the court's power to cancel bail on violation; the police may continue investigation and recoveries during bail as per established precedent (Sushila Aggarwal).
Final Disposition: Granted pre-arrest bail

Parties to the Case

Appellants / Petitioners

Vivek K.S

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• T. Madhu
• C.R. Saradamani
• Renjish S. Menon
• Vrinda T.S.
• Aiswarya Jayapal
• Rajeesh K.R.

Counsels for Respondents

• Smt. Seetha S.

Case Synopsis & Summary

This is a pre-arrest bail application under Section 438 CrPC filed by the second accused, Vivek K.S., in Crime No. 238/2024 of Maradu Police Station, Ernakulam. The prosecution alleges that on 4 February 2024, in furtherance of a common intention, three accused trespassed into the residence of the defacto complainant, assaulted the complainant’s relative, and caused injuries to two persons with a helmet, resulting in fractures, while another injury was inflicted on the complainant by a sharp-edged weapon. The defendants are said to have wrongfully restrained the injured to facilitate the first accused’s attack. The second accused disputes any overt act under Section 326 IPC and asserts that he did not participate in the actual assault; he also argues that his custodial interrogation is unnecessary because there is no recovery or other compelling reason to arrest him pre-emptively. The State counters that the investigation is ongoing and that custodial interrogation is essential for a full inquiry. The Sessions Court had previously dismissed a similar plea, holding custodial interrogation necessary at the preliminary stage. In this High Court, after reviewing Annexure FIR and the First Information Statement, the judge concluded that the only overt act ascribed to the petitioner is aiding the first accused to hit with a helmet, not attracting Section 326 against him. Consequently, the court allowed pre-arrest bail with standard conditions, including surrender within ten days, bond, two sureties, cooperation, and a prohibition on witness intimidation, citing Sushila Aggarwal to justify ongoing investigation during bail.

Provisions of Law Cited

Section 438 CrPC (1973)Sections 451, 341, 323, 324 and 326 r/w Section 34 IPC

Legal Doctrines & Maxims

Investigation and recoveries may be carried out during bail (as per Sushila Aggarwal v. State (NCT of Delhi) and another, 2020 (1) KHC 663)
Bail may be granted with conditions to ensure cooperation and non-interference during the investigation (general bail jurisprudence)

Submissions & Arguments

Contentions of Appellants / Petitioners

Applicant submits total innocence and that Annexure-A1 FIR shows no overt act by the petitioner under Section 326 IPC; the only overt act alleged is that he, along with the 3rd accused, restrained the injured to facilitate the 1st accused to assault. He contends there is no custodial necessity, no recovery to be effected, and seeks pre-arrest bail. He asserts willingness to cooperate with investigation and to abide by conditions; cites lack of specific overt act against him and the ongoing investigation referenced by the Sessions Court's dismissal order (Crl.M.C. 519/2024).

Contentions of Respondents

Public Prosecutor opposes, contending ongoing investigation, that the petitioner and the 3rd accused facilitated the 1st accused to strike the two injured with a helmet, resulting in fractures; accident registers and wound certificates support the injuries; custodial interrogation is necessary for proper investigation; Sessions Court had dismissed the earlier bail plea on the ground of necessity for custodial interrogation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited to support the proposition that investigation and recoveries may proceed even while the accused is on bail.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946** **BAIL APPL. NO. 2273 OF 2024** **CRIME NO.238/2024 OF MARADU POLICE STATION, Ernakulam** **AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.1990 OF 2024 OF HIGH COURT OF KERALA PETITIONER/S:** **VIVEK K.S AGED 27 YEARS S/O SUBRAHMANIAN.K.M, KANDAVATH HOUSE, T.V.JUNCTION, MARADU, ERNAKULAM DISTRICT, PIN - 682034** **BY ADVS. T.MADHU C.R.SARADAMANI RENJISH S. MENON VRINDA T.S. AISWARYA JAYAPAL RAJEESH.K.R.** ## **RESPONDENT/S:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031** **SR.PP SMT. SEETHA S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 2273 OF 2024 2 Dated this the 27[th] day of March, 2024 ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the 2[nd] accused in Crime No.238/2024 of the Maradu Police Station, Ernakulam registered against the accused (three in number), for allegedly committing the offences punishable under Sections 451, 341, 323, 324 and 326 r/w Section 34 of the Indian Penal Code (in short, 'IPC'). 3. The prosecution allegation is that: on 04.02.2024 at around 15.15 hours, the accused, in furtherance of their common intention, had criminally trespassed into the residence of the defacto complainant named Vimal and they assaulted the relative of the defacto complainant named Dileep. On seeing the same, the defacto complainant attempted to intervene in the matter. Then, the accused 2 and 3 wrongfully restrained the defacto complainant and his relative Jishnu and the 1[st] accused hit BAIL APPL. NO. 2273 OF 2024 3 both of them with a helmet and both Jishnu and Vimal suffered fractures of their hands. The defacto complainant sustained a swelling on his right knee. The 1[st] accused also inflicted an injury on the right palm of the defacto complainant using a sharp edged object. Thus, the accused have committed the above offences. 4. Heard; Sri.T.Madhu, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. A reading of Annexure-A1 FIR would substantiate that the offence under Section 326 is only attracted against the 1[st] accused. There is no specific overt act alleged against the petitioner so as to attract the offence under Section 326 of the IPC. The only overt act alleged against the petitioner is that he along with the 3[rd] accused had wrongfully restrained the injured, so as to facilitate the 1[st] accused to commit the offence under Section 326 of the IPC. The petitioner's custodial BAIL APPL. NO. 2273 OF 2024 4 interrogation is not necessary and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. The petitioner and 3[rd] accused had facilitated the 1[st] accused to hit the injured using his helmet. The injured Jishnu and Vimal both suffered fractures. She made available the accident register cum wound certificate to substantiate the injury suffered by all the injured. She submitted that the petitioner's custodial interrogation is necessary for the proper and full investigation of the crime. Hence, the application may be dismissed. 7. The petitioner had moved a similar application before the Court of Session, Ernakulam by filing Crl.M.C.No.519/2024. By Annexure A2 order, the learned Sessions Judge, Ernakulam dismissed the application on the ground that the petitioner's custodial interrogation is necessary and the investigation is only at the preliminary BAIL APPL. NO. 2273 OF 2024 5 stage. 8. On a careful reading of the accusations leveled in Annexure A1 FIR and the First Information Statement, it is clear that the specific overt act is alleged against the 1[st] accused, who hit the defacto complainant and the other two injured with a helmet and the two injured named Vimal and Jishnu suffered fractures on their hands. The only overt act alleged against the petitioner is that he along with the 3[rd] accused facilitated the 1[st] accused to hit the defacto complainant and the two other injured with the helmet. Therefore, prima facie, I am of the view that the offence under Section 326 of the IPC may not be attracted against the petitioner. Hence, I hold that the petitioner's custodial interrogation is not necessary and the petitioner is entitled to an order of pre-arrest bail, subject to the condition that he co-operates with the investigation. In the result, the application is allowed subject to the following conditions: BAIL APPL. NO. 2273 OF 2024 6 i) The petitioner is directed to surrender before the Investigating Officer within ten days from today. ii) In the event of the petitioner's arrest, the Investigating Officer shall produce him before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court 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, to the satisfaction of the jurisdictional court; iv) The petitioner shall co-operate with the investigation and make himself available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; v). The petitioner shall not intimidate the witnesses or interfere with the investigation in any manner; vi). The petitioner shall not get involved in any other offence while on bail. BAIL APPL. NO. 2273 OF 2024 7 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 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]. sd/- rkc/27.03.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 2273 OF 2024 8 ## **APPENDIX OF BAIL APPL. 2273/2024** ## **PETITIONER ANNEXURES** |**Annexure**|**A1**|**THE TRUE COPY OF THE FIR DATED 6/2/2024**| |---|---|---| |||**IN CRIME NO. 238/2024 OF MARADU POLICE**| |||**STATION, ERNAKULAM DISTRICT**| |**Annexure**|**A2**|**THE TRUE COPY OF THE ORDER DATED**| |||**22/2/2024 IN CRL.M.C.NO.519/2024 ON THE**| |||**FILES OF LEARNED SESSION'S COURT;**| |||**ERNAKULAM**| |**Annexure**|**A3**|**THE TRUE COPY OF THE ORDER DATED**| |||**11/3/2024 IN B.A.NO.1990/2024 ON THE**| |||**FILES OF THIS HONOURABLE COURT**| |**Annexure**|**4**|**ORDER**<br>**DATED**<br>**11-03-2024**<br>**IN**<br>**BAIL**| |||**APPL.1990/2024 ON HIGH COURT**|