Sudhi Sadan vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 12th accused in Crime No.1202/2023 of the Panthalam Police Station, Pathanamthitta registered against the accused (14 in number) alleging them to have committed offences punishable under Sections 143, 144, 147, 148, 324, 308, 506(ii) read with Section 149 of the Indian Penal Code. The petitioner was arrested on 28.12.2023.

The prosecution  case,  in  brief, is  that:  on 21.12.2023, the accused 1 to 14 along with 19 other identifiable persons out of their previous animosity towards the defacto complaint and others and in pursuance of their common object to assault the defacto complainant formed an unlawful assembly at around 1 p.m. in front of the security gate of the Panthalam N.S.S. College and attacked the injured. When the defacto complainant reached there around 1.30 p.m., the 1st accused hit him with an iron rod and caused him serious injuries. It is only because the defacto complainant warded off the hit, it did not result in his death. Thus, the accused have committed the offence.

Heard; Sri.Suvin R.Menon, the learned counsel appearing for the petitioner and C.S.Hrithwik, the learned Public Prosecutor.

The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime only due to his political affiliations. Even going by Annexure A1 FIR, the petitioner has not been named as an accused in the crime. The entire overt acts have been alleged against the 1st accused, who allegedly hit the defacto complainant. It was subsequently, six days after the incident, that the petitioner was called by the Police for questioning on 27.12.2023 and thereafter, he was arrested on 28.12.2023. The petitioner has no role in the commission of crime. The remand report submitted before the Court also speaks on the same lines. The petitioner is in custody for the last more than 16 days. The petitioner is willing to abide by any conditions that may be imposed by this Court. The petitioner's continued detention is unnecessary. Hence, the bail application may be allowed.

The learned Public Prosecutor opposed the application. He contended that it is with the common intention of the accused that they attacked the defacto complainant after forming an unlawful assembly. The defacto complainant and three other persons sustained grievous injuries. It is only because the defacto complainant warded off the attack, it did not result in his death. The investigation is at the nascent stage. If the petitioner is let off on bail, there is every likelihood of a law and order problem. Hence, the bail application may be dismissed.

Annexure A1 FIR was registered against the accused and 20 other identifiable persons. Indisputably, the petitioner's name does not figure in Annexure 1 FIR. The prosecution case is that the 1st accused had hit the defacto complainant with an iron rod on his head and it is only because he warded off the attack, it did not result in his death. Therefore, the predicate offence is under Section 308, that too against the 1st accused. It is evident from the case diary that the accused 1 to 11 have not been arrested till date. It is subsequently, after about six days, that the accused 12 and 13 were taken into custody and their arrest was recorded on 28.12.2023. On going through the wound certificate of the four injured namely, (i) Yethu (ii) Vyshnav (iii) Suraj S. Kumar and (iv) Vivek, it can be deciphered that three of them have only sustained contusion and aberrations on their body. Only Vivek had sustained a lacerated wound over the parietal region of 8 X 2 X 1 cm. There is nothing in the case diary that the petitioner has inflicted any injury. Therefore, I am of the definite view that the petitioner's continued detention is unnecessary especially since there is no recovery to be effected from him. Moreover, there is no explanation as to the reason why accused 1 to 11 have not been apprehended by the Police till date.

After bestowing my anxious consideration to the materials placed on record and hearing the respective counsel appearing for the parties, I am of the definite view that the petitioner is entitled to be released on bail.

In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, one of them shall be a native of the State of Kerala, 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 Saturdays between 9 a.m. and 11 a.m for a period of one month or till the final report is laid, whichever is earlier. And 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) 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.

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

(vii) 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 of Delhi and another [2020 (1) KHC 663].