Tejas vs State Of Kerala

C.S.Dias, J

The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail.

The petitioner is the 3rd accused in Crime No.233/2024 of the Kayamkulam Police Station, Alappuzha, which is registered against the accused (3 in number) for allegedly committing the offence punishable under Section 307 r/w Section 34 of the Indian Penal Code.

The crux of the prosecution case is that: on 24.02.2024, at around 15.30 hours, the accused in furtherance of their common intention and out of the previous animosity towards the de facto complainant, the 2nd accused rode a motorcycle with the 1st accused on the pillion and when they reached the place of occurrence, the 1st accused inflicted a cut injury on the forehead of the de facto complainant with a machete. As a result of the attack, the de facto complainant suffered extensive bleeding and an injury on his head. After the incident, the 3rd accused who was at the place of occurrence, went along with the accused 1 and 2. Thus, the accused have committed the above offences.

Heard; Sri.Sasith M.R., the learned counsel for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.

The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure A1 FIR would substantiate that there is no specific overt act alleged against the petitioner so as to attract the offence under Section 307 of the Indian Penal Code. Even though, Annexure A1 FIR was registered as early as on 25.02.2024, the petitioner has not been arrested till date. This by itself proves that the petitioner has no complicity in the crime. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Moreover, accused 1 and 2 have already been arrested and recovery has been effected. Hence, the petitioner is entitled to an order of pre-arrest bail.

The learned Public Prosecutor opposed the application. He submitted that the petitioner was along with accused 1 and 2 at the scene of occurrence. Since Section 34 of the Indian Penal Code has been incorporated, the petitioner has also a complicity in the crime. If the petitioner is granted an order of pre-arrest bail, it would torpedo the investigation. Hence, the application may be dismissed.

On an evaluation of Annexure A1 FIR, it can be seen that the specific overt act is alleged against the 1st accused, who inflicted grievous injury on the de facto complainant. The only allegation against the petitioner is that, after the incident took place, he travelled along with accused 1 and 2 on the motorcycle.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, especially on considering the allegation in Annexure A1 FIR and prima facie finding that no specific overt act is alleged against the petitioner, I am of the view that the petitioner has made out exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code.

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

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

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

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

(iv) 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;

(v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before said court within the said period;

(vi) The petitioner 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 petitioner even while the petitioner is 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.