Kuttappan S vs State Of Kerala

Dr. Kauser Edappagath, J

This application is filed u/s 438 of the Code of Criminal Procedure seeking pre-arrest bail.

The applicants are the accused Nos. 1 to 7 in Crime No.88/2023 of Ayiroor Police Station. The offences alleged are punishable under Sections 143, 147, 148, 323, 324, 354, 341 and 308 r/w 149 of IPC.

The prosecution case, in short, is that on 21.01.2023 at 12.30 p.m., the applicants formed themselves into an unlawful assembly and in prosecution of the common object of the assembly, assaulted the de facto complainant with an intention to kill her, further caught hold on her body with an intention to outrage her modesty and thereby committed the above said offences.

I have heard Sri.P.Mohamed Sabah, the learned counsel for the applicants and Smt.Maya, the learned Public Prosecutor. Perused the case diary.

The learned counsel for the applicants submitted that the applicants are innocent and have been falsely implicated in the present case. The counsel further submitted that no materials are on record to connect the applicants with the alleged crime; hence, they are entitled to get bail. The learned Public Prosecutor, on the other hand, submitted that the alleged incident occurred as a part of the intentional criminal acts of the applicants, and if they are released on bail at this stage, it will affect the course of the investigation.

I went through the FIS. The non bailable offences alleged are under Sections 354 and 308 IPC. The wound certificate would show that the de facto complainant sustained injury on her head. The injury appears to be serious in nature. A reading of the FIS would show that it was the accused No.4-Thambi who hit on the head of the de facto complainant with an iron rod. Thus, the allegation regarding Section 308 of IPC is only against the accused No.4. Specific overt act has been alleged against the accused Nos.1, 2 and 3 so far as the offence under Section 354 of IPC is concerned. However, no serious overt act has been alleged against the accused Nos.5 to 7, who are ladies. Considering the allegations levelled against the accused Nos.5 to 7, their custodial interrogation does not appear to be necessary. They have no criminal antecedents as well. Hence, I am of the view that the accused Nos.5 to 7 can be granted pre-arrest bail. Considering the seriousness of the allegations levelled against the accused Nos.1 to 4 and the overt act attributed against them, they cannot be granted the discretionary relief of pre-arrest bail.

In the result, the application is allowed in part on the following conditions:-

(i) The applicant Nos.5 to 7 shall be released on bail in the event of their arrest on executing a bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties for the like sum each to the satisfaction of the arresting officer/investigating officer, as the case may be.

(ii) The applicant Nos.5 to 7 shall fully cooperate with the investigation, including subjecting themselves to the deemed police custody for discovery, if any, as and when demanded.

(iii) The applicant Nos. 5 to 7 shall appear before the investigating officer between 10.00 a.m. and 11.00 a.m. every Saturday until further orders. They shall also appear before the investigating officer as and when required.

(iv) The applicant Nos.5 to 7 shall not commit any offence of a like nature while on bail.

(v) The applicant Nos.5 to 7 shall not attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(vi) The applicant Nos.5 to 7 shall not leave the State of Kerala without the permission of the trial Court.

(vii) The application, if any, for deletion/modification of bail conditions or cancellation of bail on the grounds of violating the bail conditions shall be filed at the jurisdictional court.

Pre-arrest bail as against applicant Nos.1 to 4 stand rejected.