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2024 Supreme(Online)(KER) 41269
HIGH COURT OF KERALA
C.S. DIAS, J
RAJESH – Appellant
Versus
STATE OF KERALA – Respondent
Bail Appl. 8116/2024
THOMAS ABRAHAM, MERCIAMMA MATHEW, ASWIN.P.JOHN, R.ANANTHAPADMANABAN, PAUL BABY, SWATHY A.P., THARA ELIZABETH THOMAS
Bail applications require prima facie evidence; the first accused's involvement was substantiated while the others lacked direct allegations, warranting their release on bail.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 333, 115(2), 118(1), 118(2), and 3(5) - Bail application - Accused Nos.1 to 4 charged with assaulting the de-facto complainant, resulting in injuries - First accused allegedly committed the assault, while others assisted - Court found prima facie evidence against the first accused, but insufficient evidence against accused Nos.2 to 4 - Application for bail of first accused dismissed; bail granted to accused Nos.2 to 4 with conditions. (Paras 1-8)
(B) Bail - Parameters for granting bail - Court must exercise discretion judiciously, considering factors such as prima facie evidence, nature of accusation, and risk of influencing witnesses. (Paras 7)
Facts of the case:
The accused were charged with assaulting the de-facto complainant, resulting in a nasal bone fracture and a tooth injury. The petitioners claimed innocence, asserting no evidence against them, while the prosecution argued for denial of bail for the first accused due to potential witness tampering.
Findings of Court:
The first accused's bail application was dismissed due to substantial evidence against him, while the applications of accused Nos.2 to 4 were allowed due to lack of direct evidence.
Issues: The court addressed the sufficiency of evidence against each accused and the implications of granting bail.
Ratio Decidendi: The court highlighted the necessity of prima facie evidence for bail, emphasizing that the first accused's involvement was substantiated, while the others lacked direct allegations.
Result: The application filed by the first accused was dismissed, while the applications of accused Nos.2 to 4 were allowed.
ORDER
Dated this the 14th day of October,2024
The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2023, by the accused Nos.1 to 4 in Crime No.873/2024 of the Palode Police Station, Thiruvananthapuram, which is registered against four accused persons for allegedly committing the offences punishable under Sections 333 , 115(2), 118(1) & 118(2) read with Section 3 (5) of the Bharatiya Nyaya Sanhita, 2023(in short, ‘BNS’). The petitioners were remanded to judicial custody on 18.09.2024.
2. The crux of the prosecution case is that: on 15.09.2024, at around 08:00 hours, the accused Nos.1 to 4, in furtherance of their common intention, had wrongfully restrained the de-facto complainant, and the first accused assaulted the de-facto complainant with a stick on his nose, and he suffered a nasal bone fracture. The accused Nos.2 to 4 also assaulted the de-facto complainant and stamped him, and he suffered a fracture of his tooth. Thus, the accused have committed the above offences.
3. Heard; Sri. Thomas Abraham, the learned counsel appearing for the petitioners and Smt. Pushpalatha M.K., the learned Senior Public Prosecutor.
4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. There is no material to substantiate the petitioners’ culpability in the crime. The Investigating Officer has deliberately incorporated Section 118 (2) of the BNS to see that the petitioners are arrested and incarcerated. In fact, it was the de-facto complainant who assaulted the petitioners and which led to the present incident. In any given case, the petitioners have been in judicial custody for the last 27 days, the investigation in the case is practically complete, and the recovery has been effected. Moreover, the petitioners do not have any criminal antecedents. Hence, the petitioners may be released on bail.
5. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioners hade brutally assaulted the de-facto complainant. It is the first accused, who assaulted the de-facto complainant with a stick and he suffered a nasal bone fracture and loosening of his tooth. She made available the accident register-cum-wound certificate of the de-facto complainant dated 15.09.2024, issued by the Government Hospital, Nedumangad, to substantiate the fact that the de-facto complainant had suffered a nasal bone fracture and loosening of his tooth. She stated that the investigation in the case, so far as the first accused is concerned, is in progress. If the first accused is enlarged on bail, there is a likelihood of him influencing the witnesses. Hence, the application may be dismissed. On the contrary, she did not dispute the fact that the allegations against the accused Nos. 2 to 4 is that they have only assisted the first accused in committing the above offences.
6. The prosecution allegation is that the petitioners had wrongfully restrained the de-facto complainant and the first accused assaulted him with a stick and he suffered a nasal bone fracture and loosening of his tooth. On a perusal of the accident register-cum-wound certificate referred to above, prima facie, I find the allegations seem to be probable, since there are corresponding injuries on the de-facto complainant. However, there is no specific overt acts attributed against the accused Nos.2 to 4 other than for assisting the first accused.
7. In Prasanta Kumar Sarkar v. Ashis Chatterjee [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows:
“9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while con
