Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 CRIME NO.164/2023 OF SOORANADU POLICE STATION, KOLLAM PETITIONER/ACCUSED: ASWIN VIJAY AGED 21 YEARS S/O.VIJAYAKUMAR, KOCHUTHUNDIL, EDAKKAD P.O, EDAKKAD, KUNNATHOOR THALUK, KOLLAM DISTRICT., PIN - 691522 BY ADV. P.V.DILEEP RESPONDENTS/STATE & COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2 THE STATION HOUSE OFFICER SOORANAD POLICE STATION, SOORANAD.P.O, KOLLAM DISTRICT,, PIN - 690522 BY ADV. T.V. NEEMA, SR. PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
Dated this the 31st day of March, 2023 The fifth accused in crime No.164/2023 of Sooranadu police station, Kollam, seeks the relief of pre-arrest bail, in this petition, filed under Section 438 of the Code of Criminal Procedure.
2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.
3. I have perused the relevant documents form part of the case diary placed by the learned Public Prosecutor.
4. The prosecution allegation is that at about 12.05
am on 03.02.2023, accused Nos.1 to 5 along with other 20 identifiable persons, in prosecution of their common object, formed themselves into an unlawful assembly, armed with deadly weapons, with knowledge that they are all members of the said assembly, due to previous animosity towards Sushand, Ramanan and Manoj and the accused assaulted them with intention to commit culpable
homicide not amounting to murder. Though the accused failed in their attempt, three persons sustained severe injuries. The specific allegation is that the first accused attacked the defacto complainant with a 'Kuthuvilakku'. Since the defacto complainant evaded, the same caused injury and fracture on his nose. The further allegation is
that accused Nos.1 to 3 had kicked the defacto complainant and when he fell down, accused Nos.4 and 5 also kicked him. On this premise, the prosecution alleges commission of offences punishable under Sections 143, 144, 147, 148, 341, 323, 324, 326 and 308 read with Section 149 of IPC.
5. The learned counsel for the petitioner would
submit that though injuries, including fracture sustained to three persons, fracture was sustained by one Manoj alone, and the same is the outcome of the overt acts at the instance of the first accused, who used to beat the defacto complainant by using a 'Kuthuvilakku'. There is no allegation for the prosecution that the fifth accused used
any weapon to assault any of the injured persons. Therefore, custodial interrogation of the petitioner is not necessary in this matter, as far as the fifth accused is concerned, who is a first time offender, is the submission of the learned counsel for the petitioner.
6. The learned Public Prosecutor also submitted
that the petitioner has no criminal antecedents and there is no allegation that he did use any weapon to assault the injured persons. However, the learned Public Prosecutor submitted that deemed custodial interrogation, atleast, is necessary to effectuate meaningful investigation in this matter.
7. On perusal of the documents, it is seen that
three persons sustained injuries, out of which Manoj sustained depressed skull fracture in high parietal region. It would appear that the same is the outcome of overt acts at the instance of the first accused and the allegation against the petitioner is confined to kicking alone and there is no allegation for the prosecution that he did use
any weapon to assault the injured persons.
8. Since the complicity of the petitioner is without
using any weapon, I am inclined to grant anticipatory bail to the petitioner, on conditions, and with specific direction to him to subject himself for interrogation for a period of two days between 10.00 am 1.00 pm. to aid the investigation. In the result, the petition stands allowed and the petitioner can be enlarged on bail, on the following conditions:
i. The petitioner shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the petitioner for two days in between 10.00 am 1.00 pm, if necessary. In the event of arrest of the petitioner, the Investigating Officer shall produce the petitioner before the jurisdictional court on the date of arrest itself. ii. On such production, the jurisdictional court shall release the petitioner on bail, on
executing bond for Rs.30,000/- (Rupees thirty thousand only) by himself and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court. iii. The petitioner 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. Further, the petitioner shall meet the investigating officer on all Mondays in between 10.00 a.m and 04.00 p.m., without fail, for a period of two months to aid the investigation. iv. The petitioner shall not intimidate the witnesses or interfere with the investigation in any manner. v. The petitioner shall 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 NB/31-3 APPENDIX OF BAIL APPL. 2299/2023 PETITIONER’S ANNEXURE: ANNEXURE-1 A TRUE COPY OF THE F.I.R IN CRIME NO. KOLLAM DISTRICT. ANNEXURE-2 A TRUE COPY OF THE F.I.R IN CRIME NO. KOLLAM DISTRICT. RESPONDENTS’ ANNEXURE: NIL TRUE COPY P.A. TO JUDGE