Bail Applications under Section 438 CrPC in Crime No. 1145/2023, Parippally Police Station, Kollam

# **`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. 7930 OF 2023 ``` ``` CRIME NO.1145/2023 OF PARIPPALLY POLICE STATION, KOLLAM ``` ## **`PETITIONERS/ACCUSED:`** ``` 1SUDHAKARAKURUP J, AGED 56 YEARS S/O JANARDHANAKURUP, THIRUVATHIRA (H), ADAKKAL, KALLUVATHUKKAL, ADUTHALA P.O., KOLLAM, PIN - 691579 2SAJITH S, AGED 41 YEARS S/O SIVADASAN, THETTIKUZHI PUTHEN VEEDU, NADAKKAL, KALLUVATHUKKAL, ADUTHALA P.O., KOLLAM, PIN - 691579 ``` ``` 3ARUN CHANDRAN, AGED 42 YEARS S/O JAYACHANDRAN PILLAI, CHERUMANNOOR VEEDU, NADAKKAL, KALLUVATHUKKAL, ADUTHALA P.O., KOLLAM, PIN - 691579 ``` ``` BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` B.A.Nos.7743 & 7930 of 2023 2 ``` 2STATION HOUSE OFFICER, PARIPALLY POLICE STATION,KOLLAM DISTRICT(CRIME NO 1145/2023 OF PARIPPALLY POLICE STATION, KOLLAM), PIN ``` ``` – 691574 ``` ``` SR. PUBLIC PROSECUTOR SRI.C.S. HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.01.2024, ALONG WITH Bail Appl..7743/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.7743 & 7930 of 2023 3 # **`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. 7743 OF 2023 ``` ``` CRIME NO.1145/2023 OF PARIPPALLY POLICE STATION, KOLLAM ``` ``` PETITIONERS: ``` ``` 1NISSAR, AGED 42 YEARS S/O MOHAMMED ILLAYAS, ANZANI MANZIL, VILAVOOR KONAM P O, KALLUVATHUKKAL, KOLLAM, PIN - 691578 2V S SANTHOSH KUMAR, AGED 48 YEARS S/O SASIDHARAKURUP, SREELAKAM, NADAKKAL, ADUTHALA P O, KALLUVATHUKKAL, KOLLAM, PIN - 691578 3JAFAR S, AGED 44 YEARS S/O SAINULABDHIL, JAFAR MANZIL, NADAKKAL, KALLUVATHUKKAL, KOLLAM, PIN - 691578 4BINSU, AGED 38 YEARS S/O THOMAS KALLUVATHUKKAL, NADAKKAL, KALLUVATHIKKAL, KOLLAM, PIN - 691578 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN ``` B.A.Nos.7743 & 7930 of 2023 4 ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER, PARIPALLY POLICE STATION,KOLLAM DISTRICT(CRIME NO 1145/2023 OF PARIPPALLY POLICE STATION, KOLLAM), PIN - 691574 *3THOUFEEQ, S/O NIZAMUDEEN, AGED 29 YEARS, KULANGARA PUTHENVEEDU, VALATHUNGAL, ERAVIPURAM, KOLLAM DISTRICT *(IS IMPLEADED AS PER ORDER DATED 24.1.2024 IN CRL.M.A NO.1/2023 IN B.A.NO. 7743 OF 2023) ``` ``` BY ADVS. M.KIRANLAL MANU RAMACHANDRAN R.RAJESH (VARKALA) SAMEER M NAIR SAILAKSHMI MENON ABHISHEK JOHNSON ``` ``` SR. PUBLIC PROSECUTOR SMT. SEETHA S. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.01.2024, ALONG WITH Bail Appl..7930/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.7743 & 7930 of 2023 5 ## **Dated this the 24[th ] day of January, 2024 COMMON ORDER** The applications are filed under Section 438 of the Code of Criminal Procedure, 1973, for orders of pre-arrest bail. 2. The petitioners in B.A.No.7930/2023 are the accused 1,7 and 9 and the petitioners in B.A. No.7743/2023 are the accused 2,3,4 and 6 in Crime No.1145/2023 of the Parippally Police Station, Kollam, registered against the accused for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324, 427, 308 r/w Section 149 of the Indian Penal Code. 3. The gist of the prosecution case is that: around 10.30 p.m. on 29.8.2023, while the de facto complainant and his friends were travelling in a jeep bearing No. KL 02 AM 10, the de facto complainant requested the accused to remove the obstruction which were put across the vehicle, which resulted in an altercation. Thereafter, the B.A.Nos.7743 & 7930 of 2023 6 accused assaulted the de facto complainant and his friends and caused damage to the vehicle. Thus, the accused have committed the above offences. 4. Heard; Sri.S.Rajeev, the learned counsel appearing for the petitioners, Sri.C.S. Hrithwik and Smt.Seetha.S, the learned Public Prosecutors and Sri. M. Kiran lal, the learned counsel appearing for the 3[rd] respondent, de facto complainant/intervener. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. They have been falsely implicated in the crime under the influence of the de facto complainant. In fact the de facto complainant and his friends were indulging in nefarious activities, including the sale of contraband drugs. When the petitioners attempted to question the de facto complainant and his friends, the altercation took place. The petitioners have also suffered grievous injuries in the incident. The police has not registered any crime against the de facto complainant and his friends, which shows the falsity in the crime. The B.A.Nos.7743 & 7930 of 2023 7 petitioners custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners may be granted an order of pre-arrest bail. 6. The learned Public Prosecutors vehemently opposed the application. They contended that the petitioners were indulging in moral policing. The petitioners have caused serious injuries to the de facto complainant and his friends, which is evident from the Accident Register-cum-Wound Certificate dated 30.8.2023, issued by the Government Medical College Hospital, Kollam. The investigation is only at its nascent stage. The petitioners custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would hamper with investigation. Hence, the applications may be dismissed. 7. The learned counsel appearing for the de facto complainant/intervener also opposed the applications. He supported and concurred with the submissions of the learned Public Prosecutors. He also submitted that the vehicle was extensively damaged causing a loss of B.A.Nos.7743 & 7930 of 2023 8 Rs. 5,00,000/-. The petitioners have taken law into their hands and caused grievous injury to the de facto complainant. Hence, the applications may be dismissed. 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 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 B.A.Nos.7743 & 7930 of 2023 9 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. B.A.Nos.7743 & 7930 of 2023 10 **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 Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. On an anxious consideration to the materials placed on record, particularly after going through the Accident Register-cum-Wound Certificate of the injured dated 30.8.2023, the nature, gravity, and seriousness of 11 B.A.Nos.7743 & 7930 of 2023 the offences alleged against the petitioners, that the investigation in the case is only at the nascent stage,that custodial interrogation of the petitioners are necessary and that recovery is to be effected, I am of the definite view that the petitioners are not entitled to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that these are not fit cases to grant orders of pre-arrest bail. Consequently, the bail applications are dismissed. 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 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 B.A.Nos.7743 & 7930 of 2023 **==> picture [15 x 10] intentionally omitted <==** be free to arrest the petitioners as if no order has been passed in these cases. SD/- ## **C.S.DIAS, JUDGE** rmm/24/1/2024