Bail Application No. 11643 of 2023 (Vishnu and others v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945** ## **BAIL APPL. NO. 11643 OF 2023** **CRIME NO.1202/2023 OF PANDALAM POLICE STATION, PATHANAMTHITTA** ## **PETITIONERS/ACCUSED 1 TO 12:** - **1 VISHNU, AGED 20 YEARS S/O PRADEEPAN T.K, SREESHYLAM (H), P.R NAGAR, VELIYAMBRA P.O, KANNUR DISTRICT, PIN - 670702** - **2 SREENATH V. NAIR, AGED 20 YEARS S/O VENUKUMAR, SREERAGAM (H), EZHAMKULAM, PARACKODU P.O, ADOOR TALUK, PATHANAMTHITTA DISTRICT, PIN - 691554** - **3 ROHITH KRISHNA R, AGED 20 YEARS S/O RADHAKRISHNAN, KRISHNAKRIPA (H), NARIYAPURAM, MAMMODU P.O, PATHANAMTHITTA DISTRICT, PIN - 689513** - **4 SARATH S, AGED 19 YEARS S/O SASIDHARAN PILLAI, SASI BHAVAN, PALLISSERICKAL P.O, SASTHAMCOTTA, KUNNATHOOR TALUK, KOLLAM DISTRICT, PIN - 690521** - **5 MIDHUN J.B, AGED 19 YEARS** - **S/O JOSHI G.R, 'MEGHA' (H), NEELESWARAM P.O,KOTTARAKARA, KOLLAM DISTRICT, PIN - 691505** - **6 MRUTHUL BABU T.E, AGED 22 YEARS S/O BABU T.E, THAZHE ELEMBILAYI (H), CHATHANGOTTUNADA P.O, KAVILUMPARA (VIA), KOZHIKODE DISTRICT, PIN - 673513** - **7 HARIKRISHNAN, AGED 21 YEARS** - **S/O B. JAYAKUMAR, VADAKKE KOYIPPURATH (H), PADINJATTE KIZHAKKU, SOORANADU P.O, KUNNATHOOR TALUK, KOLLAM DISTRICT, PIN - 690522** ## **8 AKHILCHANDRAN B, AGED 19 YEARS** **S/O BALACHANDRAN, B.S BHAVAN, VALIYA KANICHODU, VAMANAPURAM, KALAMACHAL P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695606** - **9 MILAN A, AGED 18 YEARS S/O AJI K., SREESHYLAM (H), DEVAGIRI, EDAKKADU P.O,PORUVAZHY, KOLLAM DISTRICT, PIN - 691552** **BAIL APPL.NO.11643 OF 2023** **2** **10 SAIKRISHNAN G, AGED 20 YEARS S/O GOPINATHAN PILLAI, KOCHUTHUNDIL (H), SOORANADU SOUTH, PATHARAM P.O, KUNNATHOOR TALUK, KOLLAM DISTRICT, PIN - 690522** **11 RAHUL CHANDRAN, AGED 19 YEARS S/O K. CHANDRAMOHANAN PILLAI, REMA SADHANAM, THALACHIRA P.O, KOTTARAKARA, KOLLAM DISTRICT, PIN - 691538** **12 ADARSH V.S, AGED 19 YEARS S/O VIKRAMAN PILLAI, INCHAVILA PUTHENVEEDU (H), VILANGARA, CHEPRA P.O, KOTTARAKARA TALUK, KOLLAM DISTRICT, PIN - 691520** **BY ADVS. MANU RAMACHANDRAN M.KIRANLAL T.S.SARATH DELLA MARIAM THOMAS R.RAJESH (VARKALA) SAMEER M NAIR SAILAKSHMI MENON JOTHISHA K.A.** ## **RESPONDENT/STATE:** **1 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **2 THE STATION HOUSE OFFICER, PANDALAM POLICE STATION, PATHANAMTHITTA DISTRICT, PIN - 689501** ## **OTHER PRESENT:** **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.11643 OF 2023** **3** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 1 to 12 in crime No.1202/2023 of the Pandalam Police Station, Pathanamthitta registered against the accused (14 in number) for allegedly committing the offences punishable under Sections 143, 144, 147, 148, 324, 308, 506 r/w. S.149 of the Indian Penal Code. 3. The prosecution case, in brief, is that: on 21.12.2023, the accused 1 to 14 along with 19 other identifiable persons out of their previous animosity towards the defacto complaint and others and in prosecution of their common intention to assault the defacto complainant formed an unlawful assembly at around 1 p.m. in front of the security gate of the Panthalam N.S.S. College and attacked **BAIL APPL.NO.11643 OF 2023** **4** the injured. When the defacto complainant reached there around 1.30 p.m., the 1st accused hit him with an iron rod and caused him serious injuries. It is only because the defacto complainant warded off the hit, it did not result in his death. Thus, the accused have committed the offence. 4. Heard; Sri.Manu Ramachandran, the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them and they are falsely implicated in the case due to political rivalry. In fact, the petitioners had sustained injuries in the incident that occurred in the college campus. The petitioners are only young students. The petitioners have no criminal antecedents. The petitioners' custodial interrogation is not necessary. The petitioners are willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. **BAIL APPL.NO.11643 OF 2023** **5** 6. The learned Public Prosecutor vehemently opposed the application. She made available the accident cum wound certificates of the four injured. The investigating officer has also filed a report. The Prosecutor submitted that the complicity of the petitioners is written large in the materials placed on record. The petitioners' custodial interrogation is necessary and recovery is to be effected. The investigation is only at a nascent stage. If the petitioners are granted an order of pre-arrest bail, it would hamper with the investigation. The petitioners cannot seek parity with the order in B.A.No.198/2024, which was a case filed by the 13[th] accused for regular bail. It is only under the circumstances that the 13[th] accused had surrendered and the investigation as against him was completed, this Court released him on bail. Therefore, the bail application is to 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 **BAIL APPL.NO.11643 OF 2023** **6** 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 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 **BAIL APPL.NO.11643 OF 2023** **7** 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. ## 8. Likewise, in **Jai Prakash Singh v. State of Bihar** ## **& Anr.** [(2012) 4 SCC 379] the Hon'ble Supreme Court has **BAIL APPL.NO.11643 OF 2023** **8** held that an order of pre-arrest bail shall be granted only in exceptional cases where the court is prima facie of the view that the applicant was falsely enroped in crime and that he is not likely to misuse his liberty. 9. After bestowing my anxious consideration to the materials placed on record, particularly after going through the report of the investigating officer, the accident register cum wound certificates, that the investigation in the case is only at a nascent stage, that the recovery is to be effected and that the petitioners' custodial interrogation is necessary, I am of the definite view that the petitioners are not entitled to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 10. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of **BAIL APPL.NO.11643 OF 2023** **9** surrender itself. Then, if the petitioners move 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 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** **shg**