Jothish vs State Of Kerala

Jobin Sebastian, J

This petition for anticipatory bail has been filed by accused Nos. 1 to 7 in Crime No. 572/2024 of Mangalam Dam Police Station registered alleging the commission of offences punishable under Sections 126(2), 239(4), 115(2), 118(1), 110, 74 r/w 3(5) of the Barathiya Nyaya Sanhitha 2023.

The prosecution allegation can be epitomized as follows: The accused were naturing an animosity towards the de facto complainant, as he had given a statement to the police against the 1st accused in a criminal case registered earlier. Due to the said animosity, on 24.11.2024 at 9 PM, the brother of the de facto complainant named Sri. Rajeev was riding a motorbike, and the 1st accused intercepted the said motorbike. On seeing the same, when the de facto complainant intervened and questioned the 1st accused, the accused abused the de facto complainant in filthy language. In the meantime, the 2nd and 3rd accused wrongfully restrained the de facto complainant and kicked him. Then the 1st accused stabbed the head, forehead, and chin of the de facto complainant using a chisel causing serious injuries. On hearing the alarm raised by the de facto complainant when his siblings and wife rushed to the spot, accused Nos. 2 to 7 uttered obscene words and assaulted them. The 1st accused also committed mischief by destructing the mobile phone of the de facto complainant causing a damage to the tune of Rs. 50,000/-. Hence, the accused are alleged to committed the offences mentioned above.

I heard both sides in detail and perused the available records.

The learned Public Prosecutor submitted that, as the investigation of this case is at the threshold, granting anticipatory bail will hamper the smooth course of the investigation. It is further urged that, the weapon allegedly used in the commission of offence is yet to be recovered. According to the learned Public Prosecutor, the entire matters involved in this case can be unearthed only through a detailed custodial interrogation of the accused. Anyhow, the learned Public Prosecutor fairly conceded that Section 110 of BNS has already been deleted.

Canvasing bail, the learned counsel for the petitioners submitted that it was the defacto complainant and his friends who brutally attacked the petitioners in this case and subsequently foisted the present case to escape from criminal liability. According to him, already a case has been registered against the defacto complainant and his friends as Crime No. 573/2024 of Mangalam Dam Police Station. According to the counsel, ingredients to attract offences under Sections 74 and 110 of BNS are wanting in this case and such offences were incorporated in the FIR only with an ulterior motive to put the petitioners behind Bars. Moreover, he highlighted that the petitioners 2 to 7 are the close relatives of the 1st petitioner and the majority of them are housewives and they were arrayed as accused in this case without any materials.

The specific accusation which the petitioners are facing is that they attacked the de facto complainant in a public place and unleashed violence therein. It is alleged that the first petitioner who is arrayed at the first accused in this case stabbed the head, forehead, and chin of the de facto complainant using a chisel. From a perusal of the Wound Certificate produced, it is gatherable that immediately after the incident, the de facto complainant sought medical aid from Divine Medical Mission Hospital, Wadakkancherry with an alleged history of assault, and in the medical examination the following injuries were noted:-

1) 3 x 3 cm deep lacerated wound over left parietal region.

2) 2 x 2 cm long lacerated wound over forehead right side

3) 1 x 2 cm deep lacerated wound below right side of lip

From a perusal of the above-mentioned wound certificate, it is apparent that injuries corresponding to the overt act assigned to the first petitioner are noted in the medical examination of the de facto complainant. Anyhow a perusal of the copy of the FIR, pressed into service from the side of the petitioners, reveals that a counter case has been registered against the defacto complainant and four others as crime No. 573 of 2024 of Mangalam Dam Police station, alleging commission of offences punishable under Sections 126(2), 329(4), 115(2), 118(1), 74 r/w 3(5). However, registration of such a counter case is not a reason to simplify or justify the criminal acts attributed against the petitioners in this case. However, when there is a case and counter, an in-depth investigation is highly necessary to find out how the incident started, developed, and ended.

A perusal of the available records in the case on hand reveals that the accusation against the petitioners is prima facie well-founded. Anyhow, the main overt acts are seen as assigned to the first petitioner. It was he who allegedly inflicted injuries on the de facto complainant using a chisel. The investigation in this case is in the threshold. The weapon of offence is not yet recovered. Therefore, custodial interrogation of the first petitioner is highly necessary for the progress of the investigation. As far as the other petitioners are concerned, it is to be noted that, the role allegedly attributed to them in the commission of offence stands on a lower part. No serious overt acts are seen assigned to them. Moreover, out of the petitioners, petitioner Nos. 3, 4, 5 and 6 are ladies. The nature of the allegation against petitioner Nos. 2 to 7 suggests that their custodial interrogation is not at all necessary for the progress of the investigation in this case.

Considering all the above said aspects, I am of the view that the first petitioner, against whom the main overt acts are assigned, is not entitled to get an order of anticipatory bail in his favour. Whereas, anticipatory bail can be granted to petitioner Nos. 2 to 7 on conditions.

In the result, this petition is allowed in part as follows :-

(i) Petitioner Nos. 2 to 7 shall be released on bail in the event of their arrest in connection with the above Crime on they executing a bond for a sum of Rs.25,000/- (Rupees twenty five thousand only) each with two solvent sureties each for the like sum to the satisfaction of the Investigating Officer;

(ii) Petitioner Nos. 2 to 7 shall appear before the Investigating Officer as and when required and shall co-operate with the investigation;

(iii) Petitioner Nos. 2 to 7 shall not intimidate or influence the witnesses or tamper with the evidence.

(iv) Petitioner Nos. 2 to 7 shall not involve in any offence while they are on bail.