Dhanesh K.S and Vineeth N.U v. State of Kerala and Palluruthy Police Station

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 BAIL APPL. NO. 584 OF 2024 CRIME NO.3962/2023 OF PALLURUTHY POLICE STATION, ERNAKULAM AGAINST THE ORDER/JUDGMENT CRMC 61/2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ``` ## **`PETITIONERS/ACCUSED 1 AND 2:`** ``` 1DHANEESH K.S, AGED 37 YEARS S/O SUDHEESAN, 19/1252, KUNNATH VEEDU, PALLURUTHY, SDPY ROAD, ERNAKULAM, PIN - 682006 2VINEETH N.U, AGED 38 YEARS S/O UNNI, NIKARTHIL HOUSE, 19/1900 D, SDPY ROAD, ERNAKULAM, PIN - 682006 BY ADVS. C.Y.VINOD KUMAR C.ANILKUMAR (KALLESSERIL) P.M.MANASH ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER, PALLURUTHY POLICE STATION, PALLURUTHY, ERNAKULAM, PIN - 682006 BY SR PP SMT SEETHA S ``` ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ``` 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.584 of 2024 ## -:2:- ## **O R D E R** Dated this the 15[th] day of February, 2024 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 and 2 in Crime No.3962/2023 of the Palluruthy Police Station, Ernakulam, registered against the accused for allegedly committing the offences punishable under Sections 341, 323, 324 and 326 r/w Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: the accused, in furtherance of their common intention to inflict bodily injury on the injured and out of the previous animosity, on 23.12.2023, at about 11.40 p.m, had wrongfully restrained the injured near a shop at a place named Kacherypadi Junction, Palluruthy. The first B.A.No.584 of 2024 ## -:3:- accused, using his hands and a stone, beat on the face of the injured. The injured sustained a nasal bone fracture. The second accused dragged the injured from his motorcycle and beat him. Thus, the accused have committed the above offences. 4. Heard; Sri. C.Y. Vinod Kumar, the learned counsel appearing for the petitioners and Smt. Seetha.S, the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. Even if the allegations in the FIR are taken on its face value, the same would not attract Section 326 of the IPC. The said Section has been deliberately incorporated to deny bail to the petitioners. A reading of the wound certificate would substantiate that the injured had not mentioned the weapon used by B.A.No.584 of 2024 ## -:4:- the accused. This shows the falsity in the crime. At any rate, the petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. The petitioners are willing to abide by any condition that may be imposed by this Court and cooperate with the investigation. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that the injured had suffered a fracture on the orbit with a defect in the right orbital floor, which was managed conservatively. She handed over the Accident Register-Cum-Wound Certificate as well as the medical certificate of the injured to substantiate the above assertion. She contended that the petitioners' custodial interrogation is and is to be The necessary, recovery effected. investigation in the case is only at the nascent stage. If the petitioners are granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the B.A.No.584 of 2024 ## -:5:- ## application may be dismissed. 7. The prosecution case is that the petitioners, out of their previous animosity, allegedly hit the injured on his nose with a weapon, and he sustained a fracture of his nasal bone. Thereafter, the second accused dragged the injured and assaulted him. The Accident RegisterCum-Wound Certificate and the medical certificates of the injured issued by the Lisie Hospital, Ernakulam, dated 10.01.2024, substantiate that the injured had suffered a fracture of the orbit with a defect in the right orbital floor. The petitioners had moved the Court of Session for similar relief, but their application was dismissed by Annexure A1 order on the specific finding that there are specific overt acts alleged against the petitioners, that the petitioners’ have criminal antecedents, that their custodial interrogation is necessary, and that the recovery is to be effected. 8. In **Siddharam Satlingappa Mhetre v. State of** B.A.No.584 of 2024 ## -:6:- ## **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 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 B.A.No.584 of 2024 -:7:- 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. **126** . We deem it appropriate to reiterate and B.A.No.584 of 2024 ## -:8:- 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. 10. On an anxious consideration to the facts, the B.A.No.584 of 2024 ## -:9:- materials placed on record, the rival submissions made across the Bar, especially after going through the Accident Register-Cum-Wound Certificate of the injured and the medical certificate of the injured, I am prima facie satisfied that the accusations are correct. On comprehending the seriousness, gravity, and nature of the offences alleged against the petitioners, that the petitioners’ custodial interrogation is necessary, that the recovery is to be effected, and that the investigation is in the preliminary stage, 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 B.A.No.584 of 2024 ## -:10:- produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move 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** mtk/ 15.02.2024 B.A.No.584 of 2024 ## -:11:- ## **`APPENDIX OF BAIL APPL. 584/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1TRUE COPY OF THE ORDER DATED 11/1/24 IN CRL. MC NO. 61/24 OF THE HON'BLE SESSIONS COURT, ERNAKULAM ```