Akhil Kumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 11110 OF 2023 ``` ``` CRIME NO.1953/2023 OF CHAVARA POLICE STATION, KOLLAM ``` ``` PETITIONER/3RD ACCUSED: ``` ``` AKHIL KUMAR, AGED 29 YEARS, S/O. MANIYAN PILLAI, KANNATHEZHATHU (H), CHERUSSERIBHAGAM, CHAVARA P.O., KOLLAM, PIN-691 583. ``` ``` BY ADVS. AISWARYA E J VETTIKOMPIL CHRISTINE MATHEW ``` ## **`RESPONDENT/STATE/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682 031. ``` ``` SRI. C.S. HRITHWIK, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- B.A. No.11110 of 2023 **C.S. DIAS, J. -----------------------------------------------------B.A. No.11110 of 2023 ----------------------------------------------------Dated this the 24[th] day of January, 2024** **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 _(‘Code’, for short),_ for an order of pre-arrest bail. 2. The petitioner is the third accused in Crime No.1953 of 2023 of the Chavara Police Station, Kollam, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 294(b), 506, 332 and 333 read with 34 of the Indian Penal Code, 1860 _._ 3. The concise case of the prosecution is that: around 19.40 hours on 26.11.2023, when the de facto complainant – the Sub Inspector of Chavara Police -3- ## B.A. No.11110 of 2023 Station – along with the police party was on duty near the Sankaramangalam Grand Supermarket, the accused abused the police officials in filthy language and thereafter manhandled them with an intent to deter the public servants from discharging their official duty. The de facto complainant sustained injury on his left little finger. The other constables also sustained injuries. Thus, the accused had committed the above offences. 4. Heard; Sri. Aiswarya E.J., the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no overt act alleged against the petitioner. The petitioner's custodial -4- ## B.A. No.11110 of 2023 interrogation is not necessary. The accused 1 and 2 had surrendered before the police and they have been released on bail. The investigation of the case is practically complete and the recovery has been effected. Hence, the petition may be allowed for an order of prearrest bail. 6. The learned Public Prosecutor opposed the application. He contended that there is a specific overt act alleged against the petitioner. The petitioner also fisted the police constables and committed the offences under Sections 332 and 333. He made available the accident register cum wound certificate to substantiate the injury sustained by the de facto complainant. It is submitted that the petitioner's custodial interrogation is necessary and the recovery is to be effected. Hence, the application may be dismissed. -5- B.A. No.11110 of 2023 ## 7. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 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 to repeat similar or other offences; (v) Where the accusations have been made only with -6- B.A. No.11110 of 2023 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 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. -7- B.A. No.11110 of 2023 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 pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 9. After bestowing my anxious consideration to the materials placed on record, the rival submission made across the Bar, taking into account the nature, gravity, and seriousness of the offence alleged against the petitioner, that the accident register cum wound -8- B.A. No.11110 of 2023 certificate which reveals that the de facto complainant sustained injuries, that the custodial interrogation of the petitioner is necessary and the recovery is to be effected, I am of the definite view that the petitioner is not entitled to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as -9- B.A. No.11110 of 2023 possible. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. Sd/- **C.S. DIAS JUDGE** bpr -10- B.A. No.11110 of 2023 ## **`APPENDIX OF BAIL APPL. 11110/2023`** ## **`PETITIONER'S ANNEXURES`** ``` Annexure A1 ``` ``` A TRUE COPY OF THE ORDER DATED 07/12/2023 IN CRL. M. C. NO. 2513/2023 OF THE HON'BLE PRINCIPAL SESSIONS COURT, KOLLAM IS ```