Chanthu S. and Sunil Kumar v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 BAIL APPL. NO. 11091 OF 2023 ``` ## **`CRIME NO.1595/2023 OF POOYAPALLY POLICE STATION, KOLLAM`** ## **`PETITIONERS/ACCUSED 1 AND 3:`** ``` 1CHANTHU S, AGED 24 YEARS S/O SAJU, PARAYATTU VEEDU, VELIYAM P.O VELIYAM, VELIYAM, KOLLAM, KERALA, PIN - 691540 2SUNIL KUMAR, AGED 47 YEARS S/O RAVEENDRAN, AITHARA IDAYILA VEEDU, ODANAVATTOM P.O, KOLLAM, KERALA, PIN - 691512 BY ADV NAVEEN RADHAKRISHNAN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SMT. SEETHA S. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.11091 of 2023 2 ## **Dated this the 30[th ] day of January, 2024** ## **ORDER** 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 accused 1 and 3 in Crime No.1595/2023 of the Pooyapally Police Station, Kollam registered against the accused (three in number) for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324, 326, 308 r/w Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: around 8.30 p.m., on 25.11.2023, out of the previous animosity of the accused towards the de facto complainant’s father, they wrongfully restrained the de facto complainant’s father, named Ramdas (injured) and thereafter beat him with iron rod and caused fracture on his ribs and right hand. B.A.No.11091 of 2023 3 Thus, the accused have committed the above offences. 4. Heard; Sri.Naveen Radhakrishnan, the learned counsel appearing for the petitioners and Smt. Seetha S, the learned Public Prosecutor appearing for the respondent. 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. The offences under Sections 326 and 308 of IPC will not be attracted to the facts of the case. Nonetheless, the petitioners are ready to co-operate with the investigation and abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor strenuously opposed the application. She submitted that the injured had suffered fractures on his ribs as well as his right hand. She produced the Case Diary, the Accident Register-cum-Wound Certificate and the treatment records of the injured to substantiate her assertion. She contended that the B.A.No.11091 of 2023 4 petitioners custodial interrogation is necessary and recovery is to be effected. The investigation is only at its nascent stage. 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 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 B.A.No.11091 of 2023 5 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 B.A.No.11091 of 2023 6 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. 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. B.A.No.11091 of 2023 7 9. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the nature, gravity and seriousness of the offences alleged against the petitioners, the injuries of the victim as evidenced from the Accident Register-cum Wound Certificate, that the petitioners custodial interrogation is necessary, and recovery is to be effected, I am of the view that the petitioners have not made any exceptional circumstance to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code of Criminal Procedure. Resultantly, 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, 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 on the date of surrender itself and pass orders in B.A.No.11091 of 2023 8 accordance with law. 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** rmm 31/1/2024