1. These application are filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS') by the accused 1, 3 and 4 in Crime No.959/2024 of the Hosdurg Police Station, Kasaragod, which is registered against four accused persons, for allegedly committing the offences punishable under Sections 126(2), 118(1), 110 and 351(2) read with Section 3(5) of the Bharatiya Nyaya Sanhita, (for short, ‘BNS’). The petitioners were remanded to judicial custody on 26.10.2024. B.A.No.9178/2024 is filed by the 1st accused and B.A.No.9177/2024 is filed by the accused 3 and 4. As these applications arise out of the same crime, they are consolidated, jointly heard and disposed of by this common order.

2. The prosecution case, in brief, is that: on 05.10.2024, at around 23:00 hours, the four accused persons, in furtherance of their common intention, had trespassed into the court-yard of the first informant’s uncle, and the first accused stabbed the first informant with a sharp edged weapon on his forehead. It was only because the first informant warded off the attack, he did not lose his life. The accused 2 and 3 also assaulted the first informant and threatened to murder him. Thus, the accused have committed the above offences.

3. Heard; Sri. P.K. Subhash, the learned counsel appearing for the petitioners and Sri. C.S. Hrithwik and Smt. Pushpalatha M.K., the learned Public Prosecutors and Sri. T. Madhu, the learned counsel appearing for the intervenor/defacto complainant.

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 implicated the petitioners as accused in the case. The Investigating Officer has also incorporated Sections 118(1) and 110 of the BNS, to see that the petitioners are arrested and incarcerated. The defacto complainant has not suffered any injury as alleged by the prosecution. In any given case, the petitioners have been in judicial custody for the last one month, the investigation in the case is complete and recovery is to be effected. Therefore, the applications may be allowed.

5. The learned Public Prosecutors and the learned counsel appearing for the intervenor vehemently opposed the application. They submitted that the 1st accused is involved in 6 other crimes and the 3rd accused is involved in 13 other crimes. There are specific overt acts attributed against the petitioners, who have inflicted grievous injuries on the defacto complainant. The investigation in the case is only at a nascent stage. This Court had enlarged the 2 nd accused on bail as per the order in B.A. No.8757/2024, only because there is no specific overt acts attributed against the him. The petitioners cannot claim parity with the 2nd accused. The petitioners are habitual offenders. If the petitioners are enlarged on bail, there is every likelihood of them intimidating the survivor and tampering with evidence. Hence, the applications may be dismissed.

6. The prosecution allegation is that; the petitioners along with the 2nd accused had wrongfully restrained the defacto complainant and the petitioners had assaulted him with a sharp edged weapon and he suffered grievous injuries.

7. On an appreciation of the materials placed on record, prima facie, I find the petitioners’ involvement in the crime. However, the alleged antecedents are only attributed against the accused 1 and 3. So far as the 4th accused is concerned, the allegation against him is that he assaulted the defacto complainant with a sharp edged weapon, but the defacto complainant warded off the attack and suffered an injury on his hand.

8. 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 considering an application for bail are:

(i)whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;(ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii)danger, of course, of justice being thwarted by grant of bail”.

9. It is also worth recollecting the observations made by the Hon'ble Supreme Court in Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr [(2012) 9 SCC446] in the following lines :-

“30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.”

10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on comprehending the nature, gravity and seriousness of the accusations leveled against the accused 1 and 3 , the investigation in the case, so far as they are concerned , is at the preliminary stage and that the accused 1 and 3 are persons with criminal antecedents, I am not convinced and satisfied that they are entitled to be enlarged on bail. On the contrary, since the 4th accused does not have any criminal antecedents and furthermore, the allegation against him is that, even though he attempted to assault the defacto complainant, the defacto complainant warded off the attack, I am satisfied that the 4th accused is entitled to be enlarged on bail.

11. In the result,

(1) The application filed by the accused 1 and 2 is dismissed.

(2) The application filed by the 4th accused/ 2nd petitioner in B.A.No.9177/2024 is allowed, by directing the 4 th accused/ 2nd petitioner to 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 Trial Court, which shall be subject to the following conditions:

(i) The 4th accused/ 2nd petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required;

(ii) The 4th accused/ 2nd petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(ii) The 4th accused/ 2nd petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iv) The 4 th accused/ 2nd petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the Jurisdictional Court.

(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the 4 th accused/ 2nd petitioner even while the 4 th accused/ 2nd petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and Another [2020 (1) KHC 663]