S.482 BNSS | Pre-Arrest Bail Granted If Specific Overt Act for Grievous Injury Attributed to Co-Accused, Petitioners Merely Assisted: Kerala High Court - 2024-10-18

Law Updates Made Simple.

Kerala High Court Grants Pre-Arrest Bail to Accused of Assisting in Assault, Cites Differentiated Roles

Ernakulam: The Hon’ble High Court of Kerala, in a significant order dated October 18, 2024, granted pre-arrest bail to two individuals accused of assisting in an assault, emphasizing that the specific overt act causing grievous injury was attributed to other co-accused. Justice C.S. Dias , presiding over the bench, allowed the bail application filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Case Background

The petitioners, Yadhu Krishnan (Accused No. 3) and Asfbin F Mohammed (Accused No. 4), were implicated in Crime No. 516/2024 registered at Pulikeezhu Police Station, Pathanamthitta. They, along with two other accused, faced charges under Sections 115(2) (Abetment of offence punishable with imprisonment—if act abetted is committed in consequence), 118(1) & 118(2) (Concealing design to commit offence punishable with imprisonment), 351(2) (Punishment for wrongful restraint), 126(2) (Mischief causing damage to the amount of fifty rupees), and 324(5) (Punishment for voluntarily causing hurt by dangerous weapons or means), read with Section 3(5) (Acts done by several persons in furtherance of common intention) of the Bharatiya Nyaya Sanhita, 2023 (BNS).

The prosecution alleged that on August 26, 2024, around 11:30 PM, the four accused, acting with common intention, wrongfully restrained the de-facto complainant. It was alleged that the first accused assaulted him with a stick, causing grievous injuries. The third accused (Petitioner No. 1) allegedly destroyed the complainant's mobile phone and stamped on his leg, while the fourth accused (Petitioner No. 2) purportedly kicked him.

Arguments Presented

Advocates S. Rajeev and Renjish S. Menon, representing the petitioners, contended their clients' innocence. They argued that the de-facto complainant, a driver for the second accused, had bitten the second accused's hands, leading to an act of private defence by accused Nos. 1 & 2. The petitioners, they claimed, merely assisted accused Nos. 1 & 2 and had no specific overt act attributed to them that caused grievous injury. They further submitted that custodial interrogation was unnecessary and no recovery was pending from them.

Smt. Seetha S., the learned Senior Public Prosecutor, opposed the bail application. She argued that all accused, in furtherance of their common intention, restrained and attacked the complainant. She presented medical evidence, including wound and treatment certificates from Taluk Headquarters Hospital, Thiruvalla, and General Hospital, Pala, indicating the complainant suffered an occipital wound, a contusion behind his right ear, and was later diagnosed with severe semoneural hearing loss in his left ear, deeming the injuries grievous. The prosecution maintained that custodial interrogation of the petitioners and recovery were essential for a thorough investigation.

Court's Reasoning and Application of Legal Principles

Justice C.S. Dias , after careful consideration of the facts, rival submissions, and materials on record, observed a crucial distinction in the allegations. The court noted: > "On a perusal of the materials on record, it is revealed that the specific overt act of assaulting the de-facto complainant with a wooden stick, which led to the corresponding injuries in the treatment records referred to above, is attributed against the first accused. The allegation against the petitioners is that they assisted the accused Nos.1 & 2 in assaulting the de-facto complainant."

The Court referred to the Supreme Court's decision in Jai Prakash Singh v. State of Bihar and another [(2012) 4 SCC 379] , which holds that pre-arrest bail is an extraordinary privilege to be granted only in exceptional cases, requiring proper exercise of judicial discretion and prima-facie satisfaction that the applicant has been falsely implicated or their liberty is being misused.

In granting bail, the Court reasoned: > "After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, particularly on comprehending the fact that the specific overt act of causing grievous injury on the de-facto complainant is attributed against the accused Nos.1 & 2, and the prima facie allegation against the petitioners is that they assisted the accused Nos.1 & 2 to commit the above offences, I am convinced and satisfied that the petitioners have made out satisfactory grounds to invoke the discretionary jurisdiction of this Court under Section 482 of the BNSS."

Decision and Bail Conditions

The High Court allowed the application for pre-arrest bail, subject to stringent conditions: 1. The petitioners must surrender before the Investigating Officer within 10 days. 2. Upon arrest, they shall be released on bail by executing a bond of Rs. 50,000/- each, with two solvent sureties for the like amount each. 3. They must appear before the Investigating Officer as and when required. 4. They shall not induce, threaten, or procure any witness, nor tamper with evidence. 5. They shall not involve themselves in any other offence while on bail. 6. Violation of any condition may lead to cancellation of bail by the jurisdictional court. 7. The Investigating Officer retains the power to investigate and effect recoveries, as per Sushila Aggarwal v. State (NCT of Delhi) And another [2020 (1) KHC 663] .

The Court clarified that its observations were solely for deciding the bail application and should not be construed as an expression on the merits of the case, which will be decided by the competent courts. This judgment underscores the judiciary's nuanced approach to granting pre-arrest bail, particularly in cases involving multiple accused with varying degrees of alleged involvement.