ASWANTH N.M. and PRAYAG T and SAYOOJ M v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 ``` ## **`BAIL APPL. NO. 164 OF 2024`** ``` CRIME NO.1349/2023 OF Vadakara Police Station, Kozhikode ``` ## **`PETITIONER/S:`** ``` 1ASWANTH N.M. AGED 26 YEARS S/O RAJAN, NEELIYATH MEETHAL HOUSE, AYANCHERI.P.O., VADAKARA TALUK, KOZHIKODE DISTRICT., PIN - 673541 2PRAYAG T AGED 22 YEARS S/O PREMAN, THEKKAYIL HOUSE, KOTTAPPALLY.P.O., VADAKARA TALUK, KOZHIKODE DISTRICT., PIN - 673542 3SAYOOJ M AGED 25 YEARS S/O SHIVAJI, MATHATH HOUSE, AYANCHERI.P.O., VADAKARA TALUK, KOZHIKODE DISTRICT., PIN - 673541 BY ADV ZUBAIR PULIKKOOL ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.SEETHA.S, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.164 of 2024 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No.164 of 2024** ## **-----------------------------------** ## **Dated this the 23[rd] day of January, 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 to 3 in Crime No.1349/2023 of the Badagara Police Station, Kozhikode, registered against them for allegedly committing the offences punishable under Sections 143,147,148,341,323, 324, 308, 506 read with Sec.149 of the Indian Penal Code, 1860, _(‘IPC’, for short)._ 3. The gist of the prosecution case is that: around 10.30 p.m on 17.12.2023, when the accused persons 3 Bail Application No.164 of 2024 obstructed the public road, the defacto complainant sounded the horn. Then, the accused got infuriated and the first accused attacked the defacto complainant with an iron rod and the second accused attempted to hit him on his head. However, because the defacto complainant warded off the blow, his life was miraculously saved. Thus, the accused have committed the above offences. 4. Heard; Sri. Zubair Pulikkool, the learned counsel appearing for the petitioners and Smt.Seetha.S, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioners have been falsely implicated in the crime. They are in no way connected with the incident. The Investigating Officer has deliberately incorporated Sec.308 to deny bail to the petitioners. The petitioners are law abiding citizens and have no criminal antecedents. The petitioners are willing to abide by any stringent condition that may be 4 Bail Application No.164 of 2024 imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She made available the accident register-cumwound certificate to substantiate the injury suffered by the defacto complainant on the upper side of his abdomen which was caused due to the stabbing done by the first accused. Nonetheless, she conceded to the fact that there is no overt act alleged against the accused 2 and 3. 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 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 5 Bail Application No.164 of 2024 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; (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. 6 Bail Application No.164 of 2024 **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. On an anxious consideration of the materials placed on record, particularly after going through Annexure -1 FIR and the accident register-cum-wound certificate, I find that the allegation in the FIR only shows that there is an overt act alleged against the first accused/first petitioner. There is no allegation as regards the accused 2 and 3/petitioners 2 and 3. Therefore, I am of the definite view that the petitioners 2 and 3 /accused 2 and 3 are entitled to an order of pre-arrest bail. On the contrary, the application flied by the first accused is only liable to be dismissed. In the result, the application filed by the first petitioner/first accused is dismissed. The petitioners 2 and 7 Bail Application No.164 of 2024 3/accused 2 and 3 are entitled to an order of pre-arrest bail subject to the following conditions. i) The petitioners 2 and 3 are directed to surrender before the Investigating Officer within ten days from today. ii) In the event of the said petitioners’ arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the said petitioners on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; iv) The said petitioners shall co-operate with the investigation and make themselves available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; 8 Bail Application No.164 of 2024 v). The said petitioners shall not intimidate witnesses or interfere with the investigation in any manner; vi). The said petitioners shall not get involved in any other offence while on bail. vii). In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. viii). Applications for deletion/modification of the bail conditions shall also be filed before the court below. sd/- ## **C.S.DIAS,JUDGE** Sks/ 23.1.2024 9 Bail Application No.164 of 2024 ## **`APPENDIX OF BAIL APPL. 164/2024`** ``` PETITIONER ANNEXURES Annexure 1 ``` ``` THE TRUE COPY OF THE F.I.R. IN CRIME NO. 1349/2023 OF BADAGARA POLICE STATION- KOZHIKODE DISTRICT DATED 19.12.2023. ```