Akhilkuttan R @ Akhil and Anandhu C v State of Kerala and Station House Officer, Kundara Police Station

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 2847 OF 2024 ``` ``` CRIME NO.140/2024 OF KUNDARA POLICE STATION, KOLLAM ``` ## _`PETITIONER(S)/ACCUSED NO.5:`_ ``` 1AKHILKUTTAN R @ AKHIL, AGED 29 YEARS S/O RADHAKRISHNA PILLAI, VELLIMON P.O, PERINAD, KOLLAM, PIN – 691511 2ANANDHU C , AGED 25 YEARS S/O CHANDRA PILLAI, PLAVILA KIZHAKKATHIL, EDAVATTOM, VELLIMON, P.O KOLLAM, PIN – 691511 BY ADVS. ELDHO.N.MONCY P.PARVATHY 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER, KUNDARA POLICE STATION, ELAMPALOOR, KUNDARA, KOLLAM, PIN – 691501 ``` ## _`RESPONDENT(S):`_ ## _`BY ADV:`_ ## _`SRI C S HRITHWIK, SR PP`_ ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 2847 OF 2024 -2- ``` ## _`ORDER`_ The application is filed under Section 438 of the Code of Criminal Procedure, for an order of pre-arrest bail. 2. The petitioners are the accused 5 and 6 in Crime No.140 of 2024 of the Kundara Police Station, Kollam, registered against the accused for allegedly committing the offences punishable under Sections 143, 147, 148, 294(b), 341, 324 and 308 read with Section 149 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 26.01.2024, at around 21.30 hours, the accused, in prosecution of their common intention and out of their previous animosity towards the de-facto complainant, wrongfully restrained the de-facto complainant and the first accused hurled abusive words and attacked him ``` BAIL APPL. NO. 2847 OF 2024 ``` **==> picture [23 x 9] intentionally omitted <==** with a steel rod. It was only because the de-facto complainant warded off the attack, he did not lose his life. Subsequently, the second accused also attacked him with a cycle chain and the third accused beat him with a reaper. When the de-facto complainant’s friend intervened in the matter, the accused 3 and 4 also attacked him. Then the fifth accused stabbed the defacto complainant on his left hand and the sixth accused beat the de-facto complainant’s friend named Nikhil on his left side of his eye with a chain. The de-facto complainant’s friend sustained injuries. Thus, the accused have committed the offences. 4. Heard; Sri.Eldho N.Moncy, the learned counsel for the petitioners and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners strenuously argued that the petitioners are totally innocent of the accusations levelled against them. They ``` BAIL APPL. NO. 2847 OF 2024 ``` ``` -4- ``` have been falsely implicated in the crime. A reading of Annexure A1 FIR would substantiate that the offence under Section 308 will not be attracted. The Investigating Officer has deliberately incorporated the said offence to deny bail to the petitioners. In any given case, the petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed bail objection report. The Investigating Officer has stated that there are specific overt acts alleged against the petitioners – the accused Nos.5 and 6, who stamped the de-facto complainant on his left hand with a knife and hit the de-facto complainant’s friend Nikhil on his left eye with a chain. The petitioners’ custodial interrogation is necessary and recovery is to be effected. Hence, if the petitioners are granted an order of pre-arrest bail, it ``` BAIL APPL. NO. 2847 OF 2024 ``` **==> picture [23 x 9] intentionally omitted <==** would certainly hamper the investigation. Hence, the application may be dismissed. 7. On a perusal of the materials on record it can be deciphered that there are specific overt acts alleged against the petitioners. It is alleged that the first petitioner- fifth accused stabbed the de-facto complainant with a knife and the second petitioner - sixth accused hit the de-facto complainant’s friend on his left eye with a chain. 8. 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 ``` BAIL APPL. NO. 2847 OF 2024 -6- ``` 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 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 ``` BAIL APPL. NO. 2847 OF 2024 -7- ``` 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. ## 9. In **Jai Prakash Singh v. State of Bihar and** **another,** [(2012) 4 SCC 379] the Hon’ble Supreme Court ``` BAIL APPL. NO. 2847 OF 2024 ``` **==> picture [23 x 9] intentionally omitted <==** 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. 10. After bestowing my anxious consideration to the facts, the materials placed on record and the rival submissions made across the Bar, and on comprehending the nature, gravity and seriousness of the accusations levelled against the petitioners, that the petitioners custodial interrogation is necessary and recovery is to be effected, I am not satisfied that the petitioners have made any exceptional ground 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 ``` BAIL APPL. NO. 2847 OF 2024 ``` **==> picture [23 x 9] intentionally omitted <==** an order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall consider the bail application on its merits. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. ``` Sd/- ``` ``` C.S.DIAS JUDGE ``` ``` vv ``` ``` BAIL APPL. NO. 2847 OF 2024 -10- ``` ## _`APPENDIX OF BAIL APPL. 2847/2024`_ ``` PETITIONER ANNEXURES ``` |_`ANNEXURE A1`_|_`TRUE COPY OF THE FIR IN CRIME NO. 140`_| |---|---| ||_`OF 2024 KUNDARA POLICE STATION,`_| ||_`KOLLAM RURAL DISTRICT`_| |_`ANNEXURE A2`_|_`TRUE COPY OF THE FIR NO. 141 OF 2024,`_| ||_`KUNDARA POLICE STATION, KOLLAM RURAL`_| ||_`DISTRICT`_| |_`ANNEXURE A3`_|_`TRUE COPY OF THE ORDER DATED`_| ||_`12.02.2024 IN CRL.M.C NO. 198 OF 2024`_| ||_`IN THE PRINCIPAL SESSIONS COURT,`_| ||_`KOLLAM`_| |_`ANNEXURE A4`_|_`TRUE COPY OF THE ORDER DATED`_| ||_`27.03.2024 IN B.A NO. 1186 OF 2024`_| |_`ANNEXURE A5`_|_`TRUE COPY OF THE ORDER DATED`_| ||_`26.03.2024 IN B.A NO. 1188 OF 2024`_|