Dhanesh and Others v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 BAIL APPL. NO. 468 OF 2024 ``` ``` CRIME NO.29/2024 OF POOCHAKKAL POLICE STATION, ALAPPUZHA ``` ``` PETITIONERS/ACCUSED 1 TO 4: ``` ``` 1 DHANESH AGED 44 YEARS S/O VIJAYAN, PUTHENNIKARTTH POOCHAKKAL, CHERTHALA ALAPPUZHA DISTRICT, PIN - 688526 ``` ``` 2 SOMAN @ SOMARAJ AGED 62 YEARS KUZHIKKATTUCHIRA, POOCHAKKAL, CHERTHALA, ALAPPUZHA DISTRICT -, PIN - 688526 3 BABU AGED 63 YEARS KUZHIKKATTUCHIRA, POOCHAKKAL, CHERTHALA, ALAPPUZHA DISTRICT -, PIN - 688526 ``` ``` 4 VIJAYAN AGED 74 YEARS PUTHENNIKARTTH, POOCHAKKAL, CHERTHALA, ALAPPUZHA DISTRICT -, PIN - 688526 ``` ``` BY ADVS. P.K.VARGHESE M.T.SAMEER DHANESH V.MADHAVAN K.R.ARUN KRISHNAN JERRY MATHEW SOJAN K. VARGHESE SUDARSANAN U. ``` B.A.No.468 of 2024 -:2:- ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SRI C.S.HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.468 of 2024 ## -:3:- ## **O R D E R** Dated this the 8[th] day of February, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused 1 to 4 in Crime No.29/2024 of the Poochakkal Police Station, Alappuzha, registered against them for allegedly committing the offences punishable under Sections 447, 323, 324, 341 and 326 r/w Section 34 of the Indian Penal Code, 1860. 3. The gist of the prosecution case is that: on 10.01.2024 at about 11.00 a.m, the accused 1 to 4 allegedly trespassed into the compound of the de facto complainant, wrongfully restrained him, and attacked him with fists and mangrove sticks, and the defacto complainant suffered grievous injuries, including fractures. Thus, the accused have committed the above offences. B.A.No.468 of 2024 -:4:- 4. Heard; Sri. P.K. Varghese, the learned counsel appearing for the petitioners and Sri. C.S, Hrithwik., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. Even going by the allegations in Annexure A1 FIR, it was the first accused who attacked the de facto complainant with a stick. The petitioners 2 to 4 have no complicity in the crime. The petitioners 2 to 4 are senior citizens. In fact, the first petitioner had also sustained serious injuries in the alleged incident, as evident from Annexure A5. The first petitioner lodged Annexure A2 complaint before the police, but the case has not been registered. This shows the influence of the de facto complainant. At any rate, the petitioner's custodial interrogation is not necessary. Hence, the petitioner is entitled to an order of pre-arrest bail. B.A.No.468 of 2024 ## -:5:- 6. The learned Public Prosecutor opposed the application. He contended that the petitioners/accused 1 to 4 had joined together and hit the de facto complainant with mangrove sticks. The de facto complainant has sustained several injuries, including fractures of the 10th rib and left tibia. He made available the Accident Register-Cum-Wound Certificate as well as the discharge summary of the de facto complainant dated 17.01.2024, issued by the Medical College Hospital, Gandhinagar, Kottayam, to substantiate his assertion. He submitted that the petitioners’ custodial interrogation is absolutely necessary and the recovery is to be effected. If the petitioners are let off on bail, there is every likelihood of them hampering with the investigation. Hence, the application may be dismissed. 7. On an evaluation of the materials placed on record, it is evident from the discharge summary that the defacto complainant has sustained two fractures, one on his 10th rib and another on his tibia. The de facto B.A.No.468 of 2024 ## -:6:- complainant is a 72 year old person. He was admitted to the Medical College Hospital, Kottayam, where he underwent treatment as an inpatient. 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 B.A.No.468 of 2024 -:7:- 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 B.A.No.468 of 2024 ## -:8:- 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 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. B.A.No.468 of 2024 -:9:- 10. On an anxious consideration of the facts, the materials placed on record, and the rival submissions made across the bar, particularly taking note of the discharge summary which shows that injured had suffered grievous injuries and on comprehending the nature, gravity, and seriousness of the offences alleged against the petitioners, that the investigation in the case is a preliminary stage, that the custodial interrogation of the petitioners’ is necessary, and that the recovery is to be effected, I am of the definite view that the petitioners have not made out any 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. 11. 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 B.A.No.468 of 2024 ## -:10:- surrender itself. Then, if the petitioners move applications 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** mtk/ 08.02.2024 B.A.No.468 of 2024 ## -:11:- ## **`APPENDIX OF BAIL APPL. 468/2024`** ## `PETITIONER ANNEXURES` - `ANNEXURE-1 A TRUE COPY OF THE FIR IN CRIME NO. 29/2024 OF POOCHAKKAL POLICE STATION, ALAPPUZHA DISTRICT DATED 11.01.2024.` - `ANNEXURE-2 A COPY OF THE COMPLAINT LODGED BY THE 1ST PETITIONER BEFORE THE POOCHAKKAL POLICE DATED 10.01.2024` - `ANNEXURE-3 A COPY OF THE 2ND COMPLAINT LODGED BY THE 1ST PETITIONER BEFORE THE POOCHAKKAL POLICE DATED 11.01.2024` - `ANNEXURE-4 A COPY OF THE RECEIPT GIVEN BY POOCHAKKAL POLICE DATED 10.01.2024` - `ANNEXURE-5 A COPY OF THE OUTPATIENT TICKET OF THE 1ST PETITIONER ISSUED BY THE THAIKKATTUSSERY HOSPITAL DATED 10.01.2024` - `ANNEXURE-6 A COPY OF THE COMPLAINT LODGED BY THE 1ST PETITIONER BEFORE THE POOCHAKKAL POLICE DATED 13.01.2024` - `ANNEXURE-7 A COPY OF THE DISCHARGE SUMMARY OF THE 1ST PETITIONER ISSUED BY THE MEDICAL COLLEGE HOSPITAL, KOTTAYAM` - `ANNEXURE-8 A COPY OF THE OUTPATIENT RECEIPT OF THE 4TH PETITIONER DATED 10.01.2024 ISSUED BY BCF INDO AMERICAN HOSPITAL DATED 10.01.2024` - `ANNEXURE-9 A COPY OF THE MEDICAL CERTIFICATE OF THE 2ND PETITIONER/ACCUSED NO.2 ISSUED BY THE GOVERNMENT MEDICAL COLLEGE, KOTTAYAM DATED 29.06.2023` - `ANNEXURE-10 A COPY OF THE TREATMENT CERTIFICATE OF THE 3RD PETITIONER/ACCUSED NO.3 ISSUED BY THE DEPARTMENT OF CARDIOLOGY, GOVERNMENT MEDICAL COLLEGE, ALAPPUZHA DATED 06.08.2019`