Arun and Niteesh v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 BAIL APPL. NO. 1058 OF 2024 ``` ``` CRIME NO.1175/2023 OF Valappad Police Station, Thrissur ``` ## **`PETITIONER/S:`** ``` 1ARUN AGED 19 YEARS S/O. DEVAN, PADINJAREPURACKAL VEEDU, PALAPETTY P.O., KAZHIBRAM THRISSUR, PIN - 680567 2NITEESH AGED 29 YEARS S/O. DHARMARAJAN, PANCHICHUVADU DESOM, KAZHIBRAM THRISSUR, PIN - 680567 BY ADV SURIN GEORGE IPE ``` ``` RESPONDENT/S: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SR PP SRI.C.S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.1058 of 2024 ## **C.S.DIAS,J** ## **======================** **Bail Application No.1058 of 2024 -----------------------------------** ## **Dated this the 27[th] day of February, 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 petitioners are the accused 1 and 2 in Crime No.1175/2023 of the Valappad Police Station, Thrissur, registered against them, for allegedly committing the offences punishable under Sections 447, 341, 324, 326 read with Sec.34 of the Indian Penal Code, 1860, _(‘IPC’, for short)._ 3. The gist of the prosecution case is that: on 20.12.2023 at around 20.30 hours, the accused in furtherance 3 Bail Application No.1058 of 2024 of their common intention trespassed into the compound of one Shiju, who is one of the friends of the defacto complainant and out of their previous animosity, the first accused chopped the defacto complainant with a sword and when the defacto complainant warded off the attack with his left hand, he sustained a grievous injury on his fingers. Thereafter, the second accused beat the defacto complainant with an iron pipe on his head, back, leg and shoulders. Then, the accused dragged the defacto complainant to the public road. On seeing the same, Shiju attempted to rescue the defacto complainant. But he was also hit by the second accused with an iron pipe and he sustained a fracture on his forearm and a deep injury on his left little finger. Thus, the accused have committed the above offences. 4 Bail Application No.1058 of 2024 4. Heard; Sri. Surin George Ipe, the learned counsel appearing for the petitioners and Sri.C.S Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. In fact, the petitioners were also assaulted by the defacto complainant in the same incident and they suffered grievous injuries. The Police have not registered a case due to the influence of the defacto complainant. The petitioners have been falsely implicated in the crime. The Police have deliberately incorporated Sec.326 to deny bail to the petitioners. The investigation in the case is practically complete and recovery has been effected. Therefore, the petitioners’ custodial interrogation is not necessary. Hence, the application may be allowed. 5 Bail Application No.1058 of 2024 6. The learned Public Prosecutor opposed the application. He contended that the petitioners have assaulted the defacto complainant and his friend and caused grievous injuries to them. He made available the discharge card of Shiju to show that he had suffered a distal fracture of the ulna. He submitted that the investigation is at its preliminary stage, that the custodial interrogation of the petitioners is necessary and the recovery is to be effected. If the petitioners are let off on bail, it would hamper with 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 anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily 6 Bail Application No.1058 of 2024 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 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; 7 Bail Application No.1058 of 2024 (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. 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. 8 Bail Application No.1058 of 2024 9. On a consideration of the facts, the materials placed on record, the rival submission made across the Bar, especially after going through the discharge summary of the injured and finding that he had suffered grievous injuries, and on prima facie being satisfied that the offences are attracted, that the custodial interrogation of the petitioners is necessary, that the investigation in the case is at its preliminary stage and that the recovery is to be effected, I am convinced that the petitioners are 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. 10. 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 9 Bail Application No.1058 of 2024 the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, 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** Sks/ 27.2.2024 10 Bail Application No.1058 of 2024