Anoop Salu v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2136 OF 2024 ``` ``` CRIME NO.171/2024 OF PALA POLICE STATION, KOTTAYAM ``` ``` AGAINST THE ORDER DATED 04.03.2024 IN CRMP NO.519 OF 2024 OF DISTRICT COURT & SESSIONS COURT,KOTTAYAM ``` ## `PETITIONER:` ``` ANOOP SALU, AGED 21 YEARS S/O SHALU P K, PULICHAMACKAL HOUSE, KOZHUVANAL P O, KOTTAYAM DISTRICT, PIN – 686573 ``` ``` BY ADV T.M.DOLGOVE ``` ``` RESPONDENT: ``` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.2136/2024_ _-:2:-_ _Dated this the 4[th] day of April, 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 first accused in Crime No.171/2024 of Pala Police Station, Kottayam, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 294(b), 341, 323, 324 & 308 read with Section 149 of the Indian Penal Code, 1860(‘IPC’, for short). 3. The essence of the prosecution case is that: on 06.02.2024, at around 20.30 hours, the accused, in prosecution of their common intention, had formed an unlawful assembly and the accused had stabbed the de-facto complainant with a knife in a dispute pertaining to a festival that was conducted in a local _B.A.No.2136/2024_ _-:3:-_ temple. Thus, the accused have committed the above offences. 4. Heard; Sri. T.M. Dolgove, the learned counsel appearing for the petitioner and Smt.Neema T.V., 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 accusation levelled against him. He has been falsely implicated in the crime. Section 308 of the IPC will not be attracted to the facts of the case. The Investigating Officer has deliberately incorporated the said offence only for the purpose of denying bail to the petitioner. The petitioner is only a student who is only aged 21 years. The petitioner has no criminal antecedents . The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. _B.A.No.2136/2024_ _-:4:-_ 6. The learned Public Prosecutor seriously opposed the application. She submitted that it was the petitioner who inflicted the grievous injuries on the de-facto complainant. She made available the treatment certificate issued by the Government Medical College Hospital, Kottayam, dated 11.03.2024, which shows that the de-facto complainant sustained a stab injury on his abdomen and also a wound measuring 2.31x1x1.5 cms. She submitted that the petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. On a perusal of the materials on record, it can be gathered that, it was the petitioner who had allegedly inflicted the stab wound on the de-facto complainant. Prima-facie the treatment certificate corroborates with the accusation of the prosecution. _B.A.No.2136/2024_ _-:5:-_ ## 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 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 _B.A.No.2136/2024_ _-:6:-_ 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 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 _B.A.No.2136/2024_ _-:7:-_ 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** **Anr.** [(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. 10. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submission made across the Bar, especially on comprehending the nature, gravity, and seriousness of _B.A.No.2136/2024_ _-:8:-_ the offence alleged against the petitioner, 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 has not made out any exceptional circumstances entitling him to invoke the extra-ordinary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that this is not a fit cases to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 11. 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 consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer _B.A.No.2136/2024_ _-:9:-_ shall be free to arrest the petitioner as if no order has been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** DST/04.04.24 //True copy// P.A. To Judge