The Kerala High Court while dismissing an application observed that a mere out-of-court settlement between the accused and the victims are not sufficient grounds to grant bail to a person charged with an attempt to murder under Section 307 of the Indian Penal Code.
A Single Bench of Justice A Badharudeen passed this order while hearing a Bail application filed by Nishad.
The petition has been filed under Section 439 of the Code of Criminal Procedure, seeking bail and the petitioner is the 2nd accused in crime of Kottiyam Police Station, Kollam, where the prosecution alleges commission of offences punishable under Section 294(b), 323, 324, 307 r/w 34 of IPC.
The prosecution case is that, at about 10.30 pm on 21.02.2023, due to previous animosity accused Nos 1 and 2 abused and assaulted the defacto complainant with intention to commit his murder.
Accordingly, the defacto complainant was brutally manhandled by accused Nos 1 and 2 and in consequence thereof the defacto complainant sustained multiple injuries including serious fracture, though he survived. On this premise the prosecution alleges commission of the above offences.
While pressing for grant of regular bail to the petitioner, who has 14 criminal antecedents prior to this occurrence including very serious offences, counsel for the petitioner pointed out two aspects. First one is that, the petitioner has been in custody from 22.02.2023 and the 2nd point is that, the defacto complainant and another injured person viz Dhanesh D filed affidavits stating that the entire dispute has been settled and they have no intention to proceed with the prosecution.
Whereas the Public Prosecutor strongly opposed grant of bail highlighting the antecedents of the petitioner and also serious injuries sustained to the de facto complainant inclusive of fractures.
It is submitted by the Public Prosecutor that, in this matter, apart from six serious injuries, the defacto complainant sustained nasal bone fracture and fracture of nasal septum.
On perusal of the case diary, it is discernible that this crime was registered on the basis of FIS given by the defacto complainant. In the FIS, the overt acts at the instance of the petitioner by using a knife and causing stab injuries could be gathered.
The Court noted that,
Going by the affidavits filed by the defacto complainant and the injured, stating that the dispute between them and accused has been settled, cannot be considered by this Court for any purpose, since offence under Section 307 of IPC cannot be settled acting on the recitals from the affidavit that the matter has been settled.
It has been stated further that, it would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC.
For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the chargesheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Since it is settled so, mere plea of settlement of crime alleging commission of offence punishable under Section 307 of IPC by itself is not a ground to grant bail also and grant of bail shall be subject to the merits of the matter, inclusive of antecedents of the petitioner.
“Going by the available materials, the allegations are very serious and the same are supported by medical evidence and statements of the other witnesses. Merely because the injured persons submitted that they have settled the matter, that by itself is not a reason to grant bail to the accused in a crime involving offence punishable under Section 307 of IPC, since the other witnesses if depose at the time of evidence in support of the prosecution, conviction and sentence are possible.
On perusing the antecedents, it is noticed that the offences alleged against the petitioner are very serious. That apart, he was detained under Section 3(1) of Kerala Anti-Social Activities (Prevention) Act on 17.07.2018 and 05.10.2019. Most importantly, the prosecution records prima facie would justify commission of offences alleged herein. Therefore, the petitioner cannot be released on bail, at this stage”, the Court observed while dismissing the bail application.