Sabu Abraham vs State Of Kerala
2023 Latest Caselaw 3106 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
     THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                      BAIL APPL. NO. 1752 OF 2023
 AGAINST THE ORDER/JUDGMENT IN CRMC 134/2023 OF DISTRICT COURT &
                       SESSIONS COURT,THODUPUZHA
PETITIONER/ACCUSED NOS. 1 TO 3:

    1       SABU ABRAHAM
            AGED 49 YEARS
            S/O. ABRAHAM, THURUTHIPALLIL HOUSE,
            MUNDANMUDI P.O., VANNAPPURAM,
            IDUKKI DISTRICT., PIN - 685607
    2       SIBICHAN ABRAHAM
            AGED 52 YEARS
            S/O. ABRAHAM, THURUTHIPALLIL HOUSE,
            MUNDANMUDI P.O., VANNAPPURAM,
            IDUKKI DISTRICT., PIN - 685607
    3       ALBIN SIBY
            AGED 21 YEARS
            S/O SIBICHAN, THURUTHIPALLIL HOUSE,
            MUNDANMUDI P.O., VANNAPPURAM,
            IDUKKI DISTRICT., PIN - 685607
            BY ADVS.
            KURIAN ANTONY MATHEW
            SANTHOSH MATHEW
            ARUN THOMAS
            ANIL SEBASTIAN PULICKEL
            ABI BENNY AREECKAL
            MATHEW NEVIN THOMAS
            KARTHIK RAJAGOPAL


RESPONDENT/STATE:

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:

            P G MANU SRPP


     THIS   BAIL    APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 1752 OF 2023
                                     2



                              ORDER

Dated this the 23rd day of March, 2023

This is a petition filed under Section 438 of the Code of

Criminal Procedure, seeking pre-arrest bail and the

petitioners are accused Nos. 1 to 3 in Crime No. 18/2023 of

Kaliyar Police Station, Idukki.

2. Heard the learned counsel for the petitioners as

well as the learned Public Prosecutor. Perused the relevant

materials forming part of the case diary produced by the

learned Public Prosecutor.

3. The prosecution allegation is that, on 07.01.2023,

the petitioners herein along with Sri. Shinaj P.R. ( the brother

of the defacto complainant herein) consumed alcohol jointly

in connection with the festival of Mundanmudi Church.

Thereafter, there occurred a scuffle. The prosecution

allegation further is that, thereafter the accused herein

brought Sri. Shinaj P.R. in front of the house of the 1 st

accused with intention to cause grievous hurt. The specific

allegation is that Sabu used a cable wire and beat on the face BAIL APPL. NO. 1752 OF 2023

and eye of the above Sri. Shinaj P.R. It is alleged that the 3 rd

accused beat on the abdomen of the defacto complainant by

using a reaper. Recording the statement of the brother of Sri.

Shinaj P.R. crime alleging commission of offences punishable

under Sections 323, 324 and 326 read with Section 34 of IPC

was registered.

4. The learned counsel for the petitioners submitted

that the petitioners are innocent and the allegations are

false. The learned counsel for the petitioners also submitted

that there is case and counter case in this matter. As per

Annexure-A2 FIR, crime No. 17/2023 of Kaliyar Police Station

was registered alleging commission of offences punishable

under Sections 447, 229, 323, 427 read with Section 34 of

the IPC.

5. Highlighting case and counter case and the manner

in which the prosecution case runs, the learned counsel for

the petitioners pressed for grant of anticipatory bail, with

offer to co-operate with the investigation.

6. The learned Public Prosecutor strongly opposed

grant of bail, mainly relying on the copy of wound certificate BAIL APPL. NO. 1752 OF 2023

in relation to Shinaj P.R. showing "displaced fracture

involving bilateral nasal bone, right frontal process of

maxillary and bony nasal septa". The learned Public

Prosecutor highlighted the necessity of arrest, custodial

interrogation and recovery of weapon at the instance of the

petitioners.

7. On perusal of the prosecution records, it is

discernible that crime was registered, acting on the FIS, given

by the brother of the injured (Sri. Shinaj P.R). The case diary

contains the statements given by the injured, wherein the

allegations are narrated with certainty. The allegation is that

Sabu beat on the face and eye of Sri. Shinaj P.R. by using a

cable wire like weapon. It is alleged further that the 3 rd

accused also beat on the abdomen of the defacto

complainant. On perusal of the wound certificate "displaced

fracture involving bilateral nasal bone, right frontal process of

maxillary and bony nasal septa" were noted. It appears that

fracture is the contribution of the 1 st accused. But no serious

injuries noted in the abdomen of Sri. Shinaj P.R. In fact, Sri.

Shinaj P.R. sustained very serious injuries as above which led BAIL APPL. NO. 1752 OF 2023

to registration of this crime alleging commission of offence

under Section 326 of the IPC also among other offences. In

such a case, arrest, custodial interrogation and recovery of

the weapon at the instance of the 1 st accused/1st petitioner is

necessary and mere registration of counter case involving

bailable offences, shall not by itself is a ground to disbelieve

the allegations in this crime at the extreme primitive stage of

investigation. As far as the other accused are concerned, the

overt acts are much less and therefore, there can be

enlarged on anticipatory bail.

8. In the result, bail plea at the instance of the 1 st

petitioner/ 1st accused stands dismissed.

Bail plea at the instance of petitioners 2 and 3 stands

allowed. Petitioners 2 and 3/accused Nos. 3 and 4 are

enlarged on bail on conditions:

i. The petitioners 2 and 3/accused Nos. 3 and 4 shall

surrender before the Investigating Officer within ten days

from today and on such surrender, the Investigating Officer

can question petitioners 2 and 3/accused Nos. 3 and 4 and

record their statements, if necessary. In the event of their BAIL APPL. NO. 1752 OF 2023

arrest, the Investigating Officer shall produce them before

the Jurisdictional Court on the date of arrest itself.

ii. On such production, Jurisdictional Court shall

release petitioners 2 and 3/accused Nos. 3 and 4 on bail, on

executing bond for Rs.30,000/- (Rupees Thirty thousand)

each, by them and by two sureties, each for the like sum to

the satisfaction of the Jurisdictional Court.

iii. The petitioners 2 and 3/accused Nos. 3 and 4 shall

co-operate with investigation and shall be made available for

interrogation and for the purpose of investigation, as and

when the Investigating Officer directs so. They shall meet the

Investigating Officer for a period of one month on every

Monday in between 9.00 am to 1.00 pm, without fail.

iv. The petitioners 2 and 3/accused Nos. 3 and 4, shall

not, intimidate the witnesses or interfere with the

investigation in any manner.

v. The petitioners 2 and 3/accused Nos. 3 and 4 shall

not leave India without the prior permission of the

jurisdictional Court.

vi. The petitioners 2 and 3/accused Nos. 3 and 4 shall BAIL APPL. NO. 1752 OF 2023

not commit any offence during currency of this bail and any

such involvement is a reason to cancel the bail hereby

granted.

Sd/-

A. BADHARUDEEN JUDGE LU BAIL APPL. NO. 1752 OF 2023

APPENDIX OF BAIL APPL. 1752/2023

PETITIONER ANNEXURES :

Annexure-I THE TRUE COPY OF THE FIR DATED 09-01-2023 ALONG WITH FIS IN CRIME NO. 18/2023 OF THE KALIYAR POLICE STATION.

Annexure-II A TRUE COPY OF THE FIR DATED 09-01-2023 ALONG WITH FIS IN CRIME NO. 17/2023 OF THE KALIYAR POLICE STATION.

Annexure-III A TRUE COPY OF THE WOUND CERTIFICATE DATED 09-01-2023 ISSUED TO THE 1ST PETITIONER BY THE DOCTOR IN IDDUKI DISTRICT COOPERATIVE HOSPITAL.

Annexure-IV A FREE COPY OF THE ORDER OF THE SESSIONS JUDGE, THODUPUZHA, DISMISSING THE BAIL APPLICATION NUMBERED AS CRIMINAL.M.C.NO.134/2023 DATED 20-02-2023.

               //    True Copy   //       PA To Judge