Adith P D, Anith and Abhishek v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 BAIL APPL. NO. 1340 OF 2024 ``` ## **`CRIME NO.142/2024 OF MANNUTHY POLICE STATION, THRISSUR`** ## **`PETITIONERS/ACCUSED:`** ``` 1ADITH P D AGED 22 YEARS S/O P.K DEVARAJ, PULIKKAL HOUSE, NADATHARA ROAD, MANNUTHY P.O, THRISSUR, PIN - 680651 2ANITH AGED 19 YEARS S/O P.K DEVARAJ, PULIKKAL HOUSE, NADATHARA ROAD, MANNUTHY P.O, THRISSUR, PIN - 680651 3ABHISHEK AGED 23 YEARS S/O RAJESH, OLLUKARA, THRISSUR., PIN - 680651 BY ADVS. VISHNU BHUVANENDRAN ASWIN NANDA A. ABHILASH C.V. VARUN JACOB ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` PP SMT NIMA JACOB ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1340 of 2024 -:2:- ## **O R D E R** Dated this the 23[rd] day of February, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused 2 to 4 in Crime No.142/2024 of the Mannuthy Police Station, Thrissur, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 341, 323, 326, 308 and 324 r/w Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 13.02.2024 at about 10.45 p.m., the accused, in furtherance of their common intention and out of previous animosity with the defacto complainant, assaulted the defacto complainant and one Prasanth (injured), who were the President and Secretary of the B.A.No.1340 of 2024 ## -:3:- temple committee respectively. Thus, the accused have committed the above offences. 4. Heard; Sri. Vishnu Bhuvanendran, the learned counsel appearing for the petitioners and Smt. Neema. T.V, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of Annexure A1 FIR would substantiate that none of the above offences would be attracted against the petitioners. Sections 326 and 308 have been deliberately incorporated to deny bail to the petitioners. In fact, there is a case and a counter case registered for the same incident. Annexure A5 FIR would show that the first accused and the petitioners have also sustained injuries in the incident. He drew the attention of this Court to Annexures A2 and A3 medical certificates to show that the first accused and the B.A.No.1340 of 2024 ## -:4:- petitioners have also sustained injuries in the incident. He submitted that the first accused was arrested, and recovery has been effected. Therefore, the petitioners’ custodial interrogation is not necessary. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She made available the Accident Register-Cum-Wound Certificate of the injured dated 13.02.2024 issued by the Assistant Surgeon of the General Hospital, Thrissur, to substantiate the fact that the defacto complainant sustained a nasal bone fracture and other injuries to his body. She submitted that there is a specific overt act alleged against the first petitioner/second accused, who hit the defacto complainant with an iron rod. Yet, she conceded to the fact that there is no specific overt act alleged against petitioners 2 and 3/accused 3 and 4. 7. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) B.A.No.1340 of 2024 ## -:5:- ## 1 SCC 694] the Hon’ble Supreme Court has held as follows: **111.** No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. **112** . The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood B.A.No.1340 of 2024 ## -:6:- to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. **126** . We deem it appropriate to reiterate and B.A.No.1340 of 2024 -:7:- assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 8. In **Jai Prakash Singh v. State of Bihar and another** [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that an order of a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 9. After bestowing my anxious consideration to the ## B.A.No.1340 of 2024 ## -:8:- facts, the materials placed on record, the rival submissions made across the Bar, especially on comprehending the specific overt act alleged against the first petitioner/second accused and after verifying the Accident Register-Cum-Wound Certificate of the defacto complainant which tallies with the accusations levelled against the first petitioner/second accused, that the first petitioner’s custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the first petitioner/second petitioner is not entitled to an order of pre-arrest bail, especially considering the seriousness, gravity, and nature of the offences alleged against him. Nonetheless, taking into account the fact that there is no specific overt act alleged against the petitioners 2 and 3 / accused 3 and 4, I hold that they are entitled to an order of pre-arrest bail. In the result; 1. The application filed by the first petitioner/second B.A.No.1340 of 2024 ## -:9:- accused stands dismissed. 2. The application filed by the petitioners 2 and 3 /accused 3 and 4 is allowed subject to the following conditions: i) The petitioners are directed to surrender before the Investigating Officer within one week from today. ii) In the event of the petitioners’ arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the petitioners on bail on them executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; iv) The petitioners shall co-operate with the Investigating Officer and make themselves available for interrogation as and when directed; v). The petitioners shall not intimidate witnesses or B.A.No.1340 of 2024 ## -:10:- ## interfere with the investigation in any manner; vi). The petitioners shall not get involved in any other offence while on bail. vii). 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. viii). Applications for deletion/modification of the bail conditions shall also be filed before the court below. (ix) 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 petitioners even while the petitioners are 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].** (x) Needless to say, any observations made in this B.A.No.1340 of 2024 ## -:11:- order is only for the purpose of deciding the application and the same shall not be construed as an expression on the merits of the case to be decided by the Courts. SD/- ## **C.S.DIAS,JUDGE** mtk/ 23.02.2024 ## B.A.No.1340 of 2024 ## -:12:- ## **`APPENDIX OF BAIL APPL. 1340/2024`** ``` PETITIONER ANNEXURES Annexure-ITRUE COPY OF FIR IN CRIME NO. 142/2024 DATED 14.02.2024 OF MANNUTHY POLICE STATION, THRISSUR Annexure-IITRUE COPY OF THE MEDICAL CERTIFICATE ISSUED TO THE FATHER OF PARTITIONERS 1 AND 2 FROM JUBILEE MISSION MEDICAL COLLEGE AND RESEARCH INSTITUTE, THRISSUR. Annexure-IIITRUE COPY OF TREATMENT CERTIFICATE OF 1ST PETITIONER DATED 14.02.2024 ISSUEB BY JUBILEE MISSION MEDICAL COLLEGE THRISSUR Annexure-IVTRUE COPY OF TREATMENT CERTIFICATE OF 2ND PETITIONER DATED 14.02.2024 ISSUEB BY JUBILEE MISSION MEDICAL COLLEGE THRISSUR Annexure-VTRUE COPY OF FIR IN CRIME NO. 143/2024 DATED 14.02.2024 OF MANNUTHY POLICE STATION, THRISSUR Annexure-VITRUE COPY OF COMPLAINT PREFERRED BY THE 2ND PETITIONER BEFORE THE COMMISSIONER OF POLICE, OLLUR Annexure-VIITRUE COPY OF CERTIFICATE DATED 22.07.2019 ISSUED BY KERALA FOOTBALL ASSOCIATION TO THE 2ND PETITIONER. ```