Nishad vs State Of Kerala

C.S.Dias, J

The applications are filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for orders of pre-arrest bail.

The petitioners are the accused 2 and 3 in Crime No.240/2024 of the Thrikkunnapuzha Police Station, Alappuzha, registered against the accused (three in number), for allegedly committing the offences punishable under Sections 143, 144, 146, 147, 148, 341, 323, 294(b), 325 and 308 read with Section 149 of the Indian Penal Code.

The gist of the prosecution case is that: on 31.3.2024, the accused went to attend a marriage function in an auditorium at Kumbalam. During the course of the function, the father of the bride switched off a fan which agitated the accused. While the de facto complainant tried to intervene in the matter, the second accused abused him and inflicted injuries on him with the intention to cause his death. Thus, the accused have committed the above offences.

Heard; Sri. K.K Dheerendrakrishnan, the learned counsel appearing for the petitioners and Sri.C.S Hrithwik, the learned Public Prosecutor.

The learned counsel for the petitioners vehemently submitted that the petitioners are totally innocent of the accusations levelled against them. There are no materials to substantiate that the petitioners have committed the offence under Sec.308 of the IPC. The very fact that Annexure-1 FIR was registered on 2.4.2024 in connection with the incident on 31.3.2024 wherein Sec.308 was not incorporated, proves the falsity in the present accusation. Consequent to Annexure-I FIR, the petitioners were enlarged on bail along with the first accused by the learned Magistrate. Subsequent to their enlargement on bail, the Investigating Officer filed an additional report and incorporated Sec.308 of the IPC. There is no material to substantiate the nature of the injuries suffered by the de facto complainant. In fact, the first accused has been granted an order of pre-arrest bail by the Court of Session, as per Annexure-VI order. Even though the second accused filed a similar application along with the first accused, his application was dismissed on the ground that there is some overt act alleged against him. The petitioners’ custodial interrogation is unnecessary and no recovery is to be effected. Hence, the petitioners may be granted an order of pre-arrest bail.

The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that if the petitioners are granted an order of pre-arrest bail, it would hamper the investigation. Moreover, the petitioners may intimidate the witnesses and tamper with the evidence. Hence, the application may be dismissed.

On an evaluation of the materials on record, especially Annexure-1 FIR, which was registered on 2.4.2024, it would show that the Investigating Officer had initially not incorporated the offence under Sec.308 of the IPC. It is not disputed that the petitioners were enlarged on bail by the jurisdictional Magistrate pursuant to Annexure-1 FIR. Subsequent to the release of the petitioners, the Investigating Officer filed an additional report for incorporating Sec.308 of the IPC on the allegation that the de facto complainant suffered pain on his body which was inflicted due to the overt act of the second accused. Prima facie, I do not find any material to attract the offence under Sec.308 of the IPC. However, that is a matter to be investigated and decided at the time of trial.

After bestowing my anxious consideration to the facts, the materials placed on record, the submissions made across the Bar and the findings already rendered above, I am of the definite view that the petitioners have made out exceptional circumstances to invoke the extra-ordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that it is a fit case to grant an order of pre-arrest bail.

In the result, the application is allowed subject to the following conditions:

(i) The petitioners are directed to surrender before the Investigating Officer within 10 days from today.

(ii) In the event of the petitioners’ arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like amount each;

(iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer.

(iv) The petitioners 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passports, they shall file affidavits to the effect before the said court within the said period;

(vi)The petitioners shall not get involved in any other offence while on bail;

(vii) 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.

(viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below.

(ix) 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 petitioners even while the petitioners are 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].

(x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts.