Aswanth M.C. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 986 OF 2024`** ``` CRIME NO.2/2024 OF MEPPAYUR POLICE STATION, KOZHIKODE ``` ## **`PETITIONER/ACCUSED NO.4:`** ``` ASWANTH M.C, AGED 26 YEARS S/O PRAKASAN M,MEETHALE CHANGAROTH KANDI, CHERUVANNUR, MUYIPOTH, KOZHIKODE, PIN - 673524 BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP ABIN BENNY ANJU R S. K C MOHAMED RASHID BIJITHA B. BOSE ``` ## **`RESPONDENTS/STATE/DEFACTO COMPLAINANT:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER, MEPPAYUR POLICE STATION,KOZHIKODE, PIN - 673524`** - **`3 MUHAMMED SALIH, AGED 21 YEARS NADUKKANDI HOUSE, MATTANOD P.O,KOORACHUND, KOZHIKODE RURAL, KERALA, PIN - 673527`** ``` BY ADV SMT NEEMA T V – SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.986 OF 2024 ``` **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 986 OF 2024** **------------------------------------------------------Dated this the 5[th] day of March, 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 petitioner is the fourth accused in Crime No.2/2024 of the Meppayur Police Station, Kozhikode registered against the accused (four in number) for allegedly committing the offences punishable under Sections 341, 323, 324, 294(b), 326 and 506 read with Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 01.01.2024 at about 00.15 hours, while the defacto ``` 3 ``` ``` BAIL APPL. NO.986 OF 2024 ``` complainant and his friends were returning after attending a new year function, the accused stopped the scooter of the defacto complainant and they abused the defacto complainant in vulgar language. Then, the first accused removed the helmet of the defacto complainant and hit him on his nose using the helmet, and the defacto complainant sustained a nasal bone fracture. The other accused slapped the defacto complainant and his friends with bare hands. Thus, the accused have committed the above offences. 4. Heard; Sri. P. V. Anoop, the learned counsel appearing for the petitioner and Smt. Neema T. V., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of ``` 4 ``` ``` BAIL APPL. NO.986 OF 2024 ``` Annexure B FIR would substantiate that, there is no specific overt act alleged against the petitioner. It was the first accused who caused the nasal bone fracture to the defacto complainant. At any rate, the petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a report. The Investigating Officer has stated that, it is the petitioner/fourth accused, who removed the helmet of the defacto complainant and hit him on his nose and caused the injury. The learned Public Prosecutor made available the Treatment Certificate of the injured to show that the defacto complainant suffered a nasal bone fracture. According to her, it was a mistake that was committed by the Investigating ``` 5 ``` ## **`BAIL APPL. NO.986 OF 2024`** Officer, stating that it was the first accused who caused injury. In fact, Investigating Officer had already filed a report before the court below, stating that it is the petitioner who caused the injury to the defacto complainant. 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 full and proper investigation of the crime. Moreover, the petitioner is a person with criminal antecedents, since he is involved in 5 other cases of similar nature. Hence, the application may be dismissed. 7. The prosecution allegation, is that the petitioner had removed the helmet of the defacto complainant and had hit him on his nose, and he suffered a nasal bone fracture. This aspect is evident from the Treatment Certificate issued by the Malabar ``` 6 ``` ``` BAIL APPL. NO.986 OF 2024 ``` Medical College Hospital, Kozhikode dated 15.01.2024. 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 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. ``` 7 ``` ``` BAIL APPL. NO.986 OF 2024 ``` **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 ``` 8 ``` ``` BAIL APPL. NO.986 OF 2024 ``` 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. ## 9. In **Jai Prakash Singh v. State of Bihar and** **another** [(2012) 4 SCC 379], the Hon’ble Supreme ``` 9 ``` ## **`BAIL APPL. NO.986 OF 2024`** 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. 10. After bestowing my anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially the Treatment Certificate of the injured, which prima facie substantiates that the injured has suffered a nasal bone fracture, which attracts the offence under Section 326 IPC, that the petitioner is a person with criminal antecedents, that the petitioner’s custodial ``` 10 ``` ``` BAIL APPL. NO.986 OF 2024 ``` interrogation is necessary and the recovery is to be effected, I am convinced that the petitioner has not made out 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 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 application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer ``` 11 ``` ``` BAIL APPL. NO.986 OF 2024 ``` shall be free to arrest the petitioner as if no order has been passed in this case. **Sd/C.S. DIAS JUDGE** BR ``` 12 ``` ## **`BAIL APPL. NO.986 OF 2024`** ## **`APPENDIX OF BAIL APPL. 986/2024`** ``` PETITIONER’S ANNEXURES Annexure A ``` ``` TRUE COPY OF THE FIS IN CRIME NO. 2/2024 OF MEPPAYUR POLICE STATION IN KOZHIKODE RURAL DATED 01.01.2024 ``` ``` Annexure BTRUE COPY OF THE FIR DATED 01.01.2024 IN CRIME NO. 2/2024 OF MEPPAYUR POLICE STATION IN KOZHIKODE RURAL ``` ``` RESPONDENT’S ANNEXURES: NIL ```