Kerala High Court
Mahesh@Mahesweran vs State Of Kerala on 24 August, 2020
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942
Bail Appl..No.4766 OF 2020
CRIME NO.973/2020 OF Kumily Police Station, Idukki
PETITIONERS/ACCUSED NOS.1 AND 2:
1 MAHESH@MAHESWERAN
AGED 30 YEARS
S/O.GANESHAN, MAMKUKLAM HOUSE,
MURIKKADY P.O., KUKMILY VILLAGE, KUMILY
IDUKKI DISTRICT
685535
2 CHELLAPPAN
AGED 34 YEARS
S/O.RAJAPPAN, MURIKKADY PUTHUVAL, MURIKKADY KARA,
66 MILE BHYAGAM, PERIYAR VILLAGE
IDUKKI DISTRICT
685535
BY ADV. SRI.RENJITH B.MARAR
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
682031
SRI.SANTHOSH PETER SR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
24.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.4766 OF 2020
2
ORDER
Dated this the 24th day of August 2020 This is an application filed under Section 438 of Cr.P.C seeking anticipatory bail.
2. The applicants are accused Nos.1 and 2 in Crime No.973/2020 of Kumily Police Station, Idukki, for having allegedly committed offences punishable under Sections 324, 308, 323, 326 r/w Section 34 of the IPC.
3. The prosecution case, in brief, is that on 05.07.2020 at about 5 p.m, the applicant in furtherance of common intention with the 2nd accused assaulted the de facto complainant with a dangerous weapon like a pipe range (a tool used for plumbing) and the 2nd accused hit the de facto complainant with his hands on his face. Thus the de facto complainant sustained a fracture injury under his right eye, a grievous hurt which could have caused his death and thus the applicants attempted to commit culpable homicide not Bail Appl..No.4766 OF 2020 3 amounting to murder.
4. The applicants would contend that there is also a counter case registered against the de facto complainant and others for having assaulted the applicants in prosecution of the common object of the unlawful assembly, which they had formed, and Crime No.972/2020 has been registered against the de facto complainant and 11 others as accused for offences punishable under Sections 143, 147, 148, 447, 294(b), 506, 323, 324, 308 r/w Section 149 of the IPC. It is submitted that there was a scuffle and both sides inflicted injuries, and in consequence of that grievous injuries was allegedly sustained by the de facto complainant. The applicants have no criminal antecedents. Considering the present pandemic situation, they submit that they may be released on anticipatory bail.
5. Heard the learned counsel for the applicants and the learned Public Prosecutor. Bail Appl..No.4766 OF 2020 4
6. The learned counsel for the applicants would contend that, offence under Section 326 IPC may not be attracted considering the pendency of the counter case, because there was sudden provocation and it resulted in assault by the applicants and therefore, only offence under Section 335 IPC and not 326 IPC would be attracted in this case. However, the investigating officer did not go into those aspects and details of sudden provocations by the de facto complainant and others and it resulted in the applicants being implicated for offence punishable under Section 326 of the IPC apart from Section 308. The learned counsel also submits that the applicants do not have any criminal antecedents and they are willing to co-operate with the investigation and even surrender the weapon which was allegedly used by them.
7. After having considered the entire facts and circumstances of this case, I find that there Bail Appl..No.4766 OF 2020 5 is a counter case also in which the applicants were attacked by the de facto complainant and 11 others. Offence under Section 308 is incorporated in that crime also, though it is true that none of the applicants sustained grievous injury. The applicants have no criminal antecedents. The 2nd applicant has not used any dangerous weapon to attack the de facto complainant. Under the circumstances I find that the applicants who are ready to co-operate with the investigation and recovery are entitled to pre-arrest bail.
8. In the result the application is allowed and the applicants are directed to surrender before the investigating officer within three weeks. After interrogation and recovery, in the event of their being arrested, and the recovery, they shall be released on bail on execution of bonds for Rs.50,000/-(Rupees Fifty thousand only) each with two solvent sureties each, for the like amount to the satisfaction of the investigating Bail Appl..No.4766 OF 2020 6 officer and on the following conditions;
1.They shall appear before the investigating officer on all Mondays between 9 a.m and 12 noon for a period of two months or till filing of the final report whichever is earlier.
2.They shall not tamper with evidence, influence or intimidate witnesses.
3.They shall not get involved in similar offences during the bail period.
In the event of violating the bail conditions, the prosecution shall be at liberty to apply for cancellation of bail before the jurisdictional court.
Sd/-
ASHOK MENON JUDGE SPK