Kerala High Court

Vivek K.S vs State Of Kerala on 27 March, 2024

Author: C.S.Dias

Bench: C.S.Dias

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
    WEDNESDAY, THE 27TH 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 27th day of March, 2024

                         ORDER

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 2nd 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

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

1st 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 1st 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

3rd accused had wrongfully restrained the injured, so as to

facilitate the 1st accused to commit the offence under

Section 326 of the IPC. The petitioner's custodial BAIL APPL. NO. 2273 OF 2024

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 3rd accused had facilitated

the 1st 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

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 3rd accused facilitated the 1st 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

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;