Selvin Abraham vs State Of Kerala

Bechu Kurian Thomas, J

This application is filed under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail.

Petitioner is the third accused in Crime No.774 of 2023 of Erattupettah Police Station, Kottayam, alleging offences punishable under Sections 294(b), 341, 447, 427 and 308 of the Indian Penal Code, 1860. During the course of investigation, Section 188 of the Indian Penal Code has also been added.

According to the prosecution, on 07.05.2023, at 9.45 A.M., petitioner and his two sons, who are accused Nos.1 and 2, trespassed into the property of the defacto complainant and after abusing him beat him on his head with a country stick and pushed him down. Thereafter the accused beat the defacto complainant with an iron rod over the eye brow and snatched the mobile phone causing a loss of Rs.27,000/- to the defacto complainant and thereby committed the offences alleged.

Sri.V.Sethunath,  learned  counsel  for  the  petitioner, submitted that petitioner was arrested from the front of a church next to the High Court of Kerala, that too while B.A.No.3919 of 2023, which was an application for anticipatory bail was pending consideration. It was further submitted that a property dispute between the uncle of the petitioner and the defacto complainant is pending before the Munsiff Court, Erattupettah, as O.S.No.146 of 2022. It was further submitted that the petitioner is totally innocent and that he is a practicing lawyer in various courts in the State including the High Court and that due to the influence exerted by the defacto complainant, he was arrested while he was about to enter the church to attend a prayer. According to the learned counsel, the arrest has been effected in violation of the judgment of the Supreme Court in Satendar Kumar Antil v. Central Bureau of Investigation and another [(2022) 10 SCC 51]. It was further submitted that considering the entire circumstances of the case and also the completion of interrogation petitioner ought to be released on bail.

Sri.S.Rajeev, learned counsel for the defacto complainant, on the other hand, submitted that petitioner and his two children had acted in violation of an injunction order of the civil court in O.S.No.146 of 2022 by trespassing into the suit property and assaulted the defacto complainant inflicting serious injuries. It was also submitted that even though the mobile phone of the defacto complainant was snatched away by the accused the same has not even been incorporated in the FIR clearly indicating the influence builded by the accused.

Sri.P.G.Manu, learned Public Prosecutor, opposed the application and submitted that even though the bail application was pending consideration, there was no interim order restraining arrest and therefore, there is nothing illegal in arresting the petitioner. It was further submitted that the injury sustained by the defacto complainant and the offences alleged are both serious. According to the learned prosecutor, the Investigating officer complied with all provisions of law in effecting arrest and that, since the investigation is still continuing petitioner ought not to be released on bail.

I have considered the rival contentions.

It is true that in the anticipatory bail application filed as B.A.No.3919 of 2023, there was no interim order restraining arrest of the petitioner. Though it would have been appropriate for the Investigating Officer to await orders from this Court before hastily arresting the accused still there is nothing illegal in effecting the arrest.

The nature of offences alleged to have been committed by the petitioner and other accused arises out of a property dispute between relatives. The petitioner claims that he and his children acted in support of the rights of their uncle to the property while the defacto complainant alleges that he was acting under the protection of an interim order of the civil court. Whatever be the dispute between the parties, considering the nature of injury, which as seen from the wound certificate is only a lacerated wound of 1x1 cm. on the forehead and a lacerated wound of 2x1 cm. on the parietal scalp. I am of the view that the injuries inflicted on the defacto complainant are not deep injuries as no depth is shown.

The overt act alleged against the petitioner is that he

held the defacto complainant while the other accused were assaulting him. The offence alleged is under Section 308 IPC. Petitioner was arrested on 12.06.2023. He is a practicing lawyer of this Court as well and has his office in Ernakulam. It was assured that he will co-operate with the investigation and will also appear as and when required.

Taking note of the aforesaid circumstances and the date of arrest and the stage of investigation, I am of the view that further detention of the petitioner is not warranted and that he can be released on bail on conditions.

In view of the above, I allow this application and direct the petitioner to be released on bail on the following conditions :

(a) Petitioner shall be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.

(b) Petitioner shall appear before the Investigating Officer as and when required on proper written notice to be given. If at all petitioner's presence is required any further, during investigation, specific time at which he should appear and till what time he should be present before the Investigating Officer shall also be specifically mentioned in the notice.

(c) Petitioner shall not commit any other offences and shall not intimidate or threaten the defacto complainant or any other person.

(d) Petitioner shall not leave India without the permission of the Court having jurisdiction.

In  case  of  violation  of  any  of  the  above  conditions,  the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.