Arunkumar V.A. and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945** ## **BAIL APPL. NO. 1095 OF 2024** **CRIME NO.134/2024 OF AROOR POLICE STATION, ALAPPUZHA** ## **PETITIONERS/ACCUSED 1 TO 4:** - **1 ARUNKUMAR V.A. AGED 32 YEARS S/O. ANILKUMAR, 293, VILAYANAD NIKARTH, CHETTUTHARA BHAGAM, AROOR, ALAPPUZHA, PIN - 688534** - **2 ANOOB KUMAR V.A. AGED 28 YEARS S/O. ANILKUMAR, 293, VILAYANAD NIKARTH, CHETTUTHARA BHAGAM, AROOR, ALAPPUZHA, PIN - 688534** - **3 JOJO T. J. AGED 31 YEARS S/O. JOHN, THAPPALODATHU, AROOR, ALAPPUZHA DISTRICT, PIN - 688534** - **4 JERIN C.G. AGED 31 YEARS S/O. GEORGE, CHULLIKALATHIL, NEAR AROOKUTTY BRIDGE, AROOR P.O., ALAPPPUZHA, PIN - 688534** **BY ADV P.ABANI** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 STATION HOUSE OFFICER SALEM - KOCHI - KANYAKUMARI HWY, CHANDIROOR, KERALA, PIN - 688535** ## **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.1095 OF 2024** **2** ## **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 to 4 in Crime No.134/2024 of the Aroor Police Station, Alappuzha, registered against the accused for allegedly committing the offences punishable under Sections 324, 326 and 307 r/w. 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 05.02.2024 at around 11.00 p.m., the accused 1 to 3 had assaulted the defacto complainant and caused grievous injuries to him. The accused 4 & 5 facilitated the accused 1 to 3 to carryout the attack by catching hold of the defacto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri.P.Abani, the learned counsel appearing for the petitioners and Smt. Neema T.V., the learned Senior **BAIL APPL.NO.1095 OF 2024** **3** Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioners submitted that the during the pendency of the bail application the petitioners 1 to 3 surrendered before the Investigating Officer. Therefore, the bail application, insofar as the petitioners 1 to 3 are concerned, has become infructuous and he is confining the bail application to the fourth petitioner alone, who is the fourth accused in the crime. According to him, the fourth petitioner is only the neighbour of the first accused. There is no specific overt act alleged against him. The defacto complainant is residing about 5 kms away from the place of occurrence. It is only on hearing the hue and cry that occurred in the altercation between the defacto complainant and the accused 1 to 3 that the fourth petitioner went to the place of occurrence. The fourth petitioner is innocent in the crime. His custodial interrogation is not necessary and no recovery is to be effected. The fourth petitioner is willing to abide by any stringent condition that may be imposed by this Court and **BAIL APPL.NO.1095 OF 2024** **4** cooperate with the investigation. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that, there is specific overt act alleged against the fourth petitioner who facilitated the accused 1 to 3 to cause the injuries on the defacto complainant. It is only because the fourth petitioner and the 5[th] accused held the defacto complainant, the other accused could carryout the attack. She made available the accident register cum wound certificate of the injured issued by the Medical Trust Hospital, Ernakulam to substantiate the fact that the injured had suffered an extradural haematoma on the right parieto occipital region with significant mass effect. The injured also suffered a comminuted fracture of the right and left parietal bone. The injured was treated in the intensive care unit of the hospital for a considerable period of time. She submitted that the fourth petitioner's custodial interrogation is necessary, and recovery is to be effected. The investigation in the case is only at a nascent stage. If the **BAIL APPL.NO.1095 OF 2024** **5** fourth petitioner is let off on bail, there is every likelihood of them intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed. 7. In S **iddharam 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 **BAIL APPL.NO.1095 OF 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 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. **BAIL APPL.NO.1095 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 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 accusations levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 9. After bestowing my anxious consideration to the facts, the materials placed on record, especially the treatment certificate of the injured, the rival submissions made across the Bar and on comprehending the seriousness, gravity, and nature of the offences alleged against the fourth petitioner, that the fourth petitioner's custodial interrogation is necessary and the investigation is in progress, I am of the definite view that the fourth petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction **8** of this Court under Sec.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. Nonetheless, I direct that, if the fourth 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 fourth petitioner moves 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 fourth petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the fourth petitioner as if no order has been passed in this case. Sd/- ## **C.S.DIAS** ## **JUDGE** **shg**