Kerala High Court
Praveendas vs State Of Kerala on 19 November, 2019
Equivalent citations: AIRONLINE 2019 KER 1231
Author: Alexander Thomas
Bench: Alexander Thomas
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941
Bail Appl..No.7514 OF 2019
CRIME NO.1788/2019 OF Kadakkal Police Station , Kollam
PETITIONERS:
PRAVEENDAS
AGED 32 YEARS
S/O. MOHANAN, , MS BHAVAN, EDATHARA, KADAKKAL,
KOTTARAKARA TALUK, KOLLAM.
BY ADV. SRI.M.R.SASITH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERANKULAM.
2 THE SUB INSPECTOR OF POLICE,
KADAKKAL POLICE STATION, KOLLAM RURAL-690001.
3 ADDL.R3 DINYA P.K.
DIVYA BHAVAN, PUTHUKONAM, KADAKKAL,
KOLLAM-690001.
IS IMPLEADED AS PER ORDER DATED 5.11.2019 IN CRL.MA
2/2019 IN B.A.NO.7514/2019.
R3 BY ADV. SRI.R.PUSHPANGATHAN PILLAI
SRI.AMJAD ALI, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
19.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.7514 OF 2019
2
ALEXANDER THOMAS, J
============================
BA No. 7514/2019 ============================================== Dated this the 19th day of November 2019 The petitioner herein has been arrayed as the sole accused in the instant crime No.1788/2019 of Kadakkal Police Station which has been registered for offences punishable under sections 498A and 326 of the IPC. The above said crime has been registered on the basis of FIS given by the lady defacto complainant on 09/10/2019, at about 1.15 pm in respect of the alleged incidents which happened on 06/10/2019 at about 12.30 pm in the afternoon. The lady defacto complainant in this case is the wife of the 1 st petitioner herein. The short of the prosecution case is that the marriage of the petitioner accused now aged 40 years and the lady defacto complainant, now aged 32 years was solemnized about 13 years back and the marriage was a culmination of an intense love affair between them and that the petitioner belongs to a backward class and that the lady belongs to a forward community and that petitioner used to frequently treat her with cruelty and harassment and that on 06/10/2019, at about 12.30 pm, the petitioner had quarreled with her and had beaten her on her left hand using a firewood piece ( വവറകകക കഷകഷ) and that she was immediately hospitalized on the same day and x-ray revealed that she has suffered fracture on account of the said beating received by her. Hence it is alleged by the prosecution that petitioner has Bail Appl..No.7514 OF 2019 3 thereby committed the above said offences.
2. R. Pushpangathan Pillai, learned advocate appearing for the lady defacto complainant had opposed the plea for anticipatory bail. This Court has directed the petitioner to implead the lady defacto complainant as an additional party in order to ascertain whether any mediatory efforts would be feasible. Sri. Pushpangathan Pillai, learned counsel appearing for the lady defacto complainant would submit on the basis of instructions from the party that the lady has suffered much and she is not interested for any mediation process.
3. Learned prosecutor would point out that immediately after the incident on 06/10/2019, at about 12.30 in the afternoon, the lady was admitted to the nearby hospital on the same day at about 2.10 pm and the medical records would disclose that she has suffered fracture on her left hand on account of the above said beating received by her. Learned prosecutor would point out that as the offence alleged in this case also involves a serious non-bailable offence as per section 326 of the IPC, this Court may not grant anticipatory bail to the petitioner.
4. The counsel for the petitioner would point out that the above said allegations are false and baseless and further that the petitioner is seriously interested in reconciliation, and the marital discord is on account of faults on either sides and petitioner is willing to rectify his mistakes and further that, even going by the admitted allegations of prosecution case, an offence as per Bail Appl..No.7514 OF 2019 4 section 326 of the IPC is not made out and at best, only an offence as per section 325 is made out. Section 320 of the IPC deals with grievous hurt and clause 7(3) stipulates that, where a fracture is suffered by the victim, then it would come within the ambit of grievous hurt.
4. Section 325 of the IPC deals with punishment for voluntarily causing grievous hurt and the same reads as follows:
"325. Punishment for Voluntarily causing grievous hurt- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
5. Section 326 of the IPC deals with voluntarily causing grievous hurt by dangerous weapons or means and that the same reads as follows:
"326. Voluntarily causing grievous hurt by dangerous weapons or means-Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
6. A reading of Section 326 of the IPC would make it clear that one of the necessary ingredients thereof is that it comes into play except in cases Bail Appl..No.7514 OF 2019 5 provided by section 335 and further that accused should have voluntarily caused grievous hurt by means of any instruments for shooting, stamping or cutting or any instrument which, used as a weapon of offence, is likely to cause death or by means of fire or any heated substance etc. Therefore, one of the vital ingredients is that the fracture should have been inflicted by a weapon of offence which is likely to cause death. The Division Bench of the Karnataka High Court in the case in State of Karnataka Vs. Parashram Kallappa Ghevade and Others 2007 Crl. L.J.479 dealt with a case, where the allegation was that the victim was assaulted by the accused using a bamboo stick and further that the x-ray has revealed that the victim has suffered fracture and the prosecution alleged that the accused has thereby committed the offence as per section 326 of the IPC. The Karnataka High Court held in the above said case that in the absence of various factors like size, thickness and sharpness of the weapon used for the assault, it cannot be said that a bamboo stick used for beating the accused would come within the category of dangerous weapon which is likely to cause death. In the instant case, the admitted allegation of prosecution is that the accused had beaten on the left hand of the lady victim using a firewood piece ( വവറകകക കഷകഷ). Only for the limited purpose of consideration of anticipatory bail plea, this Court is inclined to take the view that going by the dictum laid down by the Division Bench of the Karnataka High Court in State of Karnataka Vs. Parashuram Kallappa Ghevade case (supra) 2007 Crl. Law Bail Appl..No.7514 OF 2019 6 Journal 479, that in the absence of various factors like size, thickness and sharpness of the weapon allegedly used in the assault, a firewood piece (വവറകകക കഷകഷ) cannot be treated as a dangerous weapon which is likely to cause death as envisaged in section 326 of the IPC. Section 326 of the IPC is a species of a larger genus of the offence contemplated in section 325 of the IPC which is dealing with punishment for grievous hurt. If the assault made by the accused on the victim results in fracture, then definitely it would come within the ambit of grievous hurt as per section 320 of the IPC which is punishable as per section 325 thereof. But to come within the ambit of section 326 of the IPC, it should satisfy the other ingredients in section 326 and more particularly in the context of facts of this case, the prosecution should have a definite case that the alleged weapon used for the assault by the accused is a dangerous weapon which is likely to cause death as envisaged in section 326 of the IPC. Therefore only for the limited purpose of anticipatory bail plea consideration, this Court is inclined to take the view that there is strong force in the above said contention raised by Sri. M.R. Sasith Panicker, learned counsel appearing for the petitioner accused that at best only offence as per section 325 of the IPC may be made out in this case and not the serious non- bailable offence as per section 326 of the IPC. The offence as per section 325 of the IPC is a bailable offence.
7. There is yet another crucial aspect which weighs in the mind of this Court. The rival parties herein had an intense love affair for a very long Bail Appl..No.7514 OF 2019 7 time and it is an inter-caste marriage and they have been married for the last 13 years. According to the counsel for the lady defacto complainant, their marriage has faced rough seas, mainly on account of the conduct of the petitioner accused. The above said allegation is stoutly denied by counsel for the petitioner accused and he would say that both sides are at fault and that petitioner is fully ready to rectify his mistakes and is prepared to travel the extra mile to ensure that the marriage is salvaged so that the love lost between the couple is restored for atleast the vital interest of children are safe guarded. Those are all matters to be harmonized by the rival parties concerned. However this Court would take the view that if the petitioner accused is remanded in a case like this, then it might lead to a situation of permanently closing the doors for reconciliation and it might turn out to be the "last straw on the camel's back" in respect of their marriage which is already facing very rough seas. Therefore in order to ensure that the future doors for reconciliation of the marriage which has seen rough seas is not closed on a permanent basis, this Court would take the view that the remand of the petitioner accused could be avoided.
8. The upshot of the above discretion is that for the limited purpose of consideration of this anticipatory bail plea, this Court is inclined to take the view that petitioner has made out a strong probable case that his custodial interrogation may not really be warranted or necessary for effectuating the fair and smooth conduct of investigation in this crime. However prosecutor Bail Appl..No.7514 OF 2019 8 would point out that even now, petitioner has not co-operated with the IO in the interrogation process. The petitioner will have to immediately co- operate with the IO in the interrogation process. Learned prosecutor would also caution this Court that there is strong possibility of the petitioner again repeating such offences or that he may intimidate and influence the witnesses, more particularly, the lady defacto complainant.
8. Taking note of the above said serious apprehension raised by the prosecution, it is ordered as a safeguard that petitioner shall not enter into or reside anywhere within the territorial limits of the police station where the lady defacto complainant is residing until the completion of investigation process in this case subject to certain exception which will be dealt with hereinafter.
9. Counsel for the petitioner would also point out that he would pay a monthly amount to the bank account of the lady defacto complainant in order to ensure that the minimal expenses of his wife and children are taken care of. The above said undertaking made by the petitioner accused is also recorded.
10. However it is made clear that the above said observations and findings rendered by this Court are only from the limi ted perspective as to the issues arising in this bail application and all such issues that may be raised in other appropriate proceedings in relation to this case, is to be decided independently and, untrammeled and uninfluenced by any of the observations and orders made by this Court herein above. Bail Appl..No.7514 OF 2019 9
11. Accordingly the following directions and orders are passed.
a. Petitioner shall immediately personally appear before the IO in relation with the above said for interrogation purposes without any further delay at any rate by 9 am on or before 5/12/2019 or within such extended time limit that may be fixed by the IO as he deems fit and proper.
b. Petitioner shall fully co-operate with the
interrogation process.
c. After the interrogation process is over, in case the
investigating officer arrests the petitioner in relation to the
above said crime, then he shall be released on bail on his
executing bond for Rs.40,000/- and on his furnishing two
solvent sureties to the like sum both to the satisfaction of the investigating officer concerned.
12. However the grant of bail will be subject to the following conditions.
(a) The petitioner shall not involve in any criminal offences of similar nature.
(b) The petitioner shall fully co-operate with the investigation.
(c) The petitioner shall report before the Investigating Officer as and when required in that connection.
(d) The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever.
(e) The petitioner shall not visit or go anywhere near the residence or workplace of the lady de facto complainant until the conclusion of the trial in the impugned criminal proceedings.
(f) The petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station within whose limits the lady de Bail Appl..No.7514 OF 2019 10 facto complainant is residing, until the conclusion of the trial process, except for the limited purpose of reporting before the Investigating Officer in this case or in any other crimes and for attending to the court in connection with this case or any other cases or for contacting his advocate/lawyer, etc. However, if there is any emergent and genuine reasons for the petitioner to go to that area, then he may do so only with the prior permission of the Investigating Officer concerned.
(g) Further it is also ordered that either the petitioner/accused or the lady defacto complainant will be at liberty to make a plea before the learned Magistrate who is dealing with the instant case to refer the parties to the nearest local mediation center or the District Mediation centre upon which the learned Magistrate will refer the parties to such nearby mediation centre. If the mediation process is successful, then the petitioner will be at liberty to work out further modalities in that regard and at that time, petitioner will also be at liberty to seek appropriate modifications in the bail conditions in regard to the restriction regarding his place of residence.
With these observations and directions, the above Bail Application will stand disposed of.
Sd/-
ALEXANDER THOMAS
Nsd JUDGE