Sarath vs State Of Kerala

A.Badharudeen, J

This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, by the petitioners who are accused in Crime No.1528 of 2022 of East Kallada Police Station, Kollam.

Heard the learned counsel for the petitioners as also the learned Public Prosecutor.

I have perused the relevant materials forming part of the case diary produced by the learned Public Prosecutor.

The  prosecution  allegation  is  that,  at 10.45 p.m. on 24.12.2022, the accused persons, after sharing common intention, formed into unlawful assembly armed with deadly weapons, wrongfully restrained the defacto complainant with intention to commit culpable homicide at the parking ground of Kallada bar and uttered obscene words against him. The specific allegation is that the first accused beat the defacto complainant on his face by using an 'idivala' and the same caused fracture on his nasal bone. The allegation against the other accused is that, they also assisted the first accused in his attempt by kicking and fisting the defacto complainant. Pursuant to the occurrence, crime registered alleging commission of offences punishable under Sections 143, 147, 148, 341, 294(b), 323, 324, 326, 308 r/w 149 of the Indian Penal Code.

The learned counsel for the petitioners pressed for bail, on the submission that, the petitioners are innocent. He would point out that the petitioners were arrested on 25.12.2022 and they have been in custody since then. Since the investigation has achieved substantial improvement, their custody for the purpose of investigation is not required and therefore, they are liable to be released on bail.

The learned Public Prosecutor opposed bail, highlighting the seriousness of the offences alleged to be committed by the accused as well as pointing out the primitive stage of investigation. It is pointed out further that the first and third accused are habitual offenders having involvement in multiple crimes and they are having Rowdy History Sheets, as per Rule 259(1) of PSO being maintained at East Kallada Police Station. But no antecedents reported insofar as the second accused is concerned.

In relation to the first accused, Crime No.1099 of 2021 alleging commission of offences punishable under Sections 323, 294(b), 324, 308 and 427 of IPC is pointed out. Four antecedents insofar as the third accused also is pointed out as under:

1) Crime No.380/2013, U/S.27 of Arms Act

2) Cr.970/2013, U/s.160 IPC

3) Cr.1214/14 U/s.323, 324, 294(b), 452, 143, 147 r/w.149 IPC

4) Cr.530/11, U/s.143, 147, 148, 294(b), 323, 308 r/w 149 IPC of East Kallada PS.

In this case, the prosecution allegation as to commission of the offences is well established prima facie, as per the witness statements as well as the medical records forming part of the case diary. It is relevant to note that the defacto complainant sustained comminuted fracture nasal bones, medial wall of right orbit with pneumocephalus and fracture ethmoid with hemosinus and the defacto complainant underwent inpatient treatment for a substantive period. Eventhough the criminal antecedents insofar as the first accused is only one, the third accused is having criminal antecedents as discussed herein above. Therefore, I am not inclined to release him on bail at this stage. Therefore, application of the third accused stands dismissed.

Having noticed the progress of investigation and the custody of the first and second accused for the last 58 days, I am inclined to release the first and second accused on bail on conditions and one among the conditions is that the petitioners 1 and 2 shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted.

Accordingly, the bail application at the instance of the third petitioner/third accused stands dismissed. The bail application at the instance of accused Nos.1 and 2 stands allowed on the following conditions:

i. The petitioners 1 and 2/accused Nos.1 and 2 shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question them. In the event of their arrest, the Investigating Officer shall produce the petitioners 1 and 2 before the jurisdictional court on the date of arrest itself.

ii. On such production, the jurisdictional court shall release the petitioners 1 and 2 on bail, on executing bond for Rs.30,000/- (Rupees thirty thousand only) by themselves and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court.

iii. The petitioners 1 and 2 shall co-operate with the investigation and shall be made available for trial. He shall appear before the Investigating Officer on every day in between 9.00 a.m. and 12 noon, from the date of release on bail, for a period of two months or till the final report will be filed, whichever occur first.

iv. The petitioners 1 and 2, shall not, intimidate the witnesses or interfere with the investigation in any manner.

v. The petitioners 1 and 2 shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted.