Alvin v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 341 OF 2024 ``` ``` CRIME NO.1206/2023 OF ANCHALUMMOODU POLICE STATION, KOLLAM ``` ## `PETITIONER/3RD ACCUSED:` ``` ALVIN AGED 25 YEARS S/O JOHNSON, VAZHAKKOTTATHIL VEEDU NADUVILA CHERRY, THRIKKARUVA VILLAGE, KANJAVAVELI P O,KOLLAM KERALA, PIN - 691602 BY ADVS. V.I.RAHUL SHIFA LATHEEF DERIN C. JOY JISHA J.S. ``` ## `RESPONDENTS/STATE:` ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER ANCHALUMOODU POLICE STATION, KOLLAM DISTRICT., PIN - 691601 BY SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.341 of 2024 ## -:2:- ## Dated this the 25[th] day of January, 2024 **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the 3[rd] accused in Crime No.1206/2023 of the Anchalumoodu Police Station, Kollam, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324 and 308 r/w 34 of the Indian Penal Code, 1860. 3. The gist of the prosecution case is that: around 8.30 p.m, on 14.11.2023, while the victim was riding his motorcycle, the first accused, along with other accused, waylaid the victim and abused him; thereafter, the second accused slapped him on the face, and the first accused attempted to attack him with a sword. While the B.A.No.341 of 2024 ## -:3:- de facto complainant saw the incident and attempted to intervene, the first accused attacked him with a sword aiming at his head. It is only because the de facto complainant evaded the attack, he did not lose his life. Then, a friend of the de facto complainant intervened and attempted to take the sword from the first accused, but he was also attacked on his left wrist. The accused also attacked the friends of the de facto complainant using cricket bat and sticks. Thus, the accused have committed the above offences. 4. Heard; Sri. V.I. Rahul, the learned counsel appearing for the petitioner, Smt. Seetha.S, the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no specific overt act alleged against the petitioner. The petitioner is a 25 year youth and is a law-abiding citizen. He is ready to abide by any B.A.No.341 of 2024 ## -:4:- stringent condition that may be imposed by this Court. The custodial interrogation of the petitioner is not necessary. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She contended that there is a specific overt act alleged against the petitioner, who used the cricket bat and assaulted the de facto complainant and his friends. The petitioner’s custodial interrogation is necessary. The recovery has to be effected. If the petitioner is granted an order of pre-arrest bail, it will hamper the investigation. Hence, the application may be dismissed. 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 B.A.No.341 of 2024 ## -:5:- 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 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 B.A.No.341 of 2024 ## -:6:- 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. B.A.No.341 of 2024 -:7:- 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, particularly taking note of the specific overt act alleged against the petitioner in Annexure A1 FIR, that the investigation in the case is that the custodial of the progress, interrogation petitioner is necessary, and that 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 B.A.No.341 of 2024 ## -:8:- that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 10. 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 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** mtk/25.01.24 B.A.No.341 of 2024 ## -:9:- ## `APPENDIX OF BAIL APPL. 341/2024` ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1TRUE COPY OF THE FIR DATED 15-11-2023 IN CRIME NO. 1206/2023 OF ANCHALUMOODE STATION, KOLLAM ANNEXURE A2TRUE COPY OF THE BAIL ORDER IN CRL MC 2576/2023 DATED 18-12-2023 DISMISSED BY THE LEARNED PRINCIPAL SESSIONS JUDGE,KOLLAM. ```