Abhinav vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in crime No.187/2024 of the Kalady Police Station, Ernakulam, registered against the accused (two in number), for allegedly committing the offences punishable under Secs.341, 323, 294(b), 506 and 308 read with Sec.34 of the Indian Penal Code. The petitioner was arrested on 28.2.2024.

The crux of the prosecution case is that: on 27.2.2024 at around 4.15 p.m, the accused in furtherance of their common intention had wrongfully restrained the de facto complainant, abused him and threatened him with the fear of death. Then, the first accused attempted to commit culpable homicide by attempting to stab him on his neck. Although the de facto complainant evaded the attack, he got injured on his left and right shoulder. When the friends of the de facto complainant attempted to intervene in the matter, the accused also assaulted them. Thus, the accused have committed the above offences.

Heard; Sri.Dinesh Mathew J.Murikan, the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. Sec.308 has been deliberately incorporated to deny bail to the petitioner. A reading of Annexure A1 FIR would substantiate that the said offence is not attracted. A perusal of the accident register cum wound certificate of the injured would show that the de facto complainant and his friends suffered only minor injuries. Notwithstanding the above contentions, the petitioner has been in judicial custody since 28.2.2024, the investigation in the case is practically complete and recovery has been effected. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He made available the accident register cum wound certificate of the three injured dated 27.2.2024 issued by the Community Health Centre, Kalady to substantiate his assertion. He contended that if the petitioner is released on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed.

The crux of the prosecution case is that the accused 1 and 2 in furtherance of their common intention had restrained the de facto complainant and caused injuries to him and his two friends. On a perusal of the accident register cum certificate of the three injured, namely, the de facto complainant and his friends Adhil and Joson, shows that all of them only sustained abrasions on different parts of their body. Therefore, I am prima facie of the view that the offence under Sec.308 may not be attracted. Notwithstanding the above observations, it is the fact that the petitioner has been in judicial custody since 28.2.2024.

After bestowing my anxious consideration to the facts, rival submission made across the Bar, the materials placed on record and the findings rendered above, I am of the view that the petitioner’s continued detention is unnecessary, especially since recovery has been effected and the petitioner does not have any criminal antecedents. Hence, I am inclined to allow the bail application.

In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of one month or till the final report is laid, whichever is earlier. He shall also appear before the Investigating Officer as and when required;

(ii) 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;

(iii) The petitioner shall not commit any offence while he is on bail;

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) The petitioner shall furnish his present address and permanent address, and his mobile phone number to the court below and the Investigating Officer;

(vi) 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.

(vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(viii) 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].