Arun Asokan v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 618 OF 2024 ``` ``` CRIME NO.06/2024 OF PALARIVATTOM POLICE STATION, ERNAKULAM ``` ## `PETITIONER:` ``` ARUN ASOKAN, AGED 32 YEARS S/O.ASOKAN P.M,PARAVAKKALTHARA, THIRUMALA BHAGAM P.O,CHERTHALA, ALAPPUZHA DISTRICT, PIN – 688540 ``` ``` BY ADV K.DEEPA (PAYYANUR) ``` ## `RESPONDENT:` ``` 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 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.618/2024 -:2:- Dated this the 21[st] 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 petitioner is the sole accused in Crime No.6/2024 of Palarivattom Police Station, Ernakulam, registered against him, for allegedly committing the offences punishable under Section 304 of the Indian Penal Code, 1860(in short, ‘IPC’) and Sections 134(A) & 134(B) of the Motor Vehicles Act, 1988. 3. The crux of the prosecution case is that: on 02.01.2024, at around 13.39 hours, while the accused was driving a bus bearing No.JK-42S-2130 through the Edappally-Vyttila Bye-pass road from the north to south direction, ‘Anilkumar’ (deceased) was riding his scooter through the right side track on the said road. While so, the accused with a knowledge that if the bus was B.A.No.618/2024 -:3:- deviated suddenly to the right side track it would result in collision and the death of the deceased, knowingly deviated the bus and hit the scooter ridden by the deceased. Due to the said action, the bus hit on the scooter and the deceased fell underneath the bus, and the bus ran over the head of the deceased, who succumbed to the injuries. Thus, the accused has committed the above offences. 4. Heard; Smt.K.Deepa (Payyanur), 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. The petitioner has not committed the above offences. Even if the allegations in Annexure-A1 First Information Report are taken on its face value, the same will not attract the offence under Section 304 of the IPC. She placed B.A.No.618/2024 -:4:- reliance on a decision of this Court in **Finil Biju v. State of Kerala** [2023 Supreme (Ker) 889] to fortify her contention that the offence under Section 304 of the IPC will not be attracted. She submitted that the petitioner is a person without any antecedents. The CCTV footage would clearly reveal that the incident occurred due to the negligence of some other vehicle. The petitioner is willing to co-operate with the Investigating Officer and abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He contended that, the petitioner had with the intention to cause death to the deceased deviated the bus and hit the scooter of the deceased, who lost his life in the incident. The petitioner had already moved the Court of Session by filing a similar application, which was dismissed by Annexure-A2 order on the specific finding that there is B.A.No.618/2024 -:5:- ample material to substantiate that the incident occurred due to the mens rea on the part of the petitioner. He also made available the postmortem certificate to show the antemortem injuries sustained by the deceased. He 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 certainly hamper with the investigation. The petitioner may also influence the witnesses. Hence, the application may be dismissed. 7. The prosecution allegation is that the petitioner, who was driving a bus through Edappally-Vyttila Bye-pass road, with an intention to cause death to the deceased, suddenly deviated the bus to the track of the deceased and hit his scooter. As a result of the collision, the bus ran over the head of the deceased, who succumbed to the injuries then and there on the spot. 8. The petitioner had moved Crl.M.C.No.47/2024 B.A.No.618/2024 -:6:- before the Court of Session, Ernakulam, for a similar relief. The learned Sessions Judge, after verifying the case diary and other materials placed on record and also specifically appreciating the statements of the eye witnesses who have stated it was due to the action on the part of the petitioner that the deceased lost his life and, further, that the petitioner’s custodial interrogation is necessary, dismissed the application. 9. 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 B.A.No.618/2024 -:7:- 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; (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. B.A.No.618/2024 -:8:- 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. 10. 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 a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 11. On an anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly after going B.A.No.618/2024 -:9:- through the case diary and the Postmortem Certificate of the deceased, and taking note of the fact that there are incriminating materials against the petitioner, I prima-facie find the accusations levelled against the petitioner seem to be correct. 12. On comprehending the seriousness, gravity, and nature of the offences alleged against the petitioner, that his custodial interrogation is necessary, that the recovery is to be effected, I am of the definite view that the petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 13. 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 B.A.No.618/2024 -:10:- 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** DST/21.02.24 //True copy// P.A. To Judge B.A.No.618/2024 -:11:- ## `APPENDIX` ``` PETITIONER ANNEXURES ANNEXURE -A1TRUE COPY OF THE FIR DATED 02.01.2024 OF CRIME NO.06/2024 OF PALARIVATTOM POLICE STATION; ERNAKULAM ``` ``` ANNEXURE -A2TRUE COPY OF THE ORDER DATED 15.01.2024 IN CRL. M. C NO. 47/2024 OF THE COURT OF SESSIONS; ERNAKULAM DIVISION IN CRIME NO.06/2024 OF PALARIVATTOM POLICE STATION ```