Asish Vinodan and Sanalkumar S R 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. 798 OF 2024 ``` ``` CRIME NO.84/2024 OF PARIPPALLY POLICE STATION, KOLLAM ``` ## **`PETITIONERS/S:ACCUSED NO.1 & 2`** ``` 1ASISH VINODAN AGED 48 YEARS S/O VINODAN, JOJO VILLA, KARIMPALOOR, PUTHENKULAM P.O, PARIPPALLY VILLAGE, POOTHAKKULAM, KOLLAM., PIN - 691302 2SANALKUMAR S R AGED 50 YEARS S/O SUDHAKARAN, PUTHENVILA VEEDU, PAMPURAM, KALLUVATHUKKAL P.O, KALLUVATHUKKAL, KOLLAM, KERALA., PIN - 691578 BY ADVS. M.R.SASITH ROHIT LOBO ANJANA SURESH.E ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV SRI C S HRITHWIK – SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ## **`BAIL APPL. NO.798 OF 2024`** **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 798 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 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioners are the accused Nos.1 and 2 in Crime No.84/2024 of the Parippally Police Station, Kollam registered against them for allegedly committing the offences punishable under Sections 294(b) and 353 read with Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 21.01.2024, while the defacto complainant had gone to the Pampuram Vishnu Temple to resolve an issue that occurred between two groups in the said premises, the ``` 3 ``` ``` BAIL APPL. NO.798 OF 2024 ``` accused 1 and 2 abused the defacto complainant in vulgar language and, thereafter, they pushed him forcefully to the ground. When he attemptted to get up from the ground, the accused grabbed on his uniform and destroyed his name plate. Thus, the accused have committed the above offences. 4. Heard; Sri. Sasith M. R., the learned counsel appearing for the petitioners and Sri. C. S. Hrithwik, the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners have been falsely implicated in the crime. The petitioners had no involvement in the case. The offence under Section 353 IPC has been deliberately incorporated to deny bail to the petitioners. At any rate, the petitioners’ custodial interrogation is not necessary and no recovery is to be effected. In fact, as per Annexure A2 certificate, the petitioners sustained ``` 4 ``` ## **`BAIL APPL. NO.798 OF 2024`** injuries in the incident. Hence, the petitioners may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. He contended that the petitioners used force and pushed down the defacto complainant, who was discharging his duties. Therefore, the offence under Section 353 IPC is attracted. It is submitted that the petitioners’ custodial interrogation is necessary and recovery has to be effected. If the petitioners are granted an order of pre-arrest 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 ``` 5 ``` ``` BAIL APPL. NO.798 OF 2024 ``` 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 Satishchandra Ratanlal 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; ``` 6 ``` ``` BAIL APPL. NO.798 OF 2024 ``` (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 ``` 7 ``` ``` BAIL APPL. NO.798 OF 2024 ``` 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 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 ``` 8 ``` ## **`BAIL APPL. NO.798 OF 2024`** applicant is only to enrope him in the crime and would misuse his liberty. 9. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record and on comprehending the seriousness, gravity, and nature of the accusations levelled against the petitioners, that the petitioners’ custodial interrogation is necessary and that the recovery is to be effected, I am convinced that the petitioners have not made out any exceptional grounds to invoke the extraordinary jurisdiction 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 petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, ``` 9 ``` ## **`BAIL APPL. NO.798 OF 2024`** thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move 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 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** BR ``` 10 ``` ## **`BAIL APPL. NO.798 OF 2024`** ## **`APPENDIX OF BAIL APPL. 798/2024`** ``` PETITIONER’S ANNEXURES Annexure A1THE TRUE COPY OF THE FIR IN CRIME NO 84/2024 OF PARIPPALLY POLICE STATION, KOLLAM Annexure A2THE PETITIONERS WENT TO GOVERNMENT MEDICAL COLLEGE HOSPITAL, KOLLAM AND RECEIVED A WOUND CERTIFICATE ``` ``` RESPONDENT’S ANNEXURES: NIL ```