Geevarghese V Pauly v. State of Kerala

## **`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. 762 OF 2024 ``` ``` CRIME NO.1221/2023 OF CHERPU POLICE STATION, THRISSUR AGAINST THE ORDER IN CRMC 1708/2023 OF DISTRICT COURT & SESSIONS COURT,THRISSUR ``` ## **`PETITIONER/5TH ACCUSED:`** ``` GEEVARGHESE V PAULY AGED 32 YEARS S/O PAULY, VITHAYATHIL HOUSE, AMBALANADA, PARLAM P.O., THRISSUR., PIN - 680563 ``` ``` BY ADV RAJESH CHAKYAT ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2 THE STATION HOUSE OFFICER CHERPU POLICE STATION, THRISSUR DISTRICT, PIN - 680561 ``` ``` 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.762 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 petitioner is the 5[th] accused in Crime No.1221/2023 of the Cherppu Police Station, Thrissur, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 448, 341, 323, 324 294(b), 506(i) and 308 r/w Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 16.10.2023, at about 9.30 p.m, while the accused and his friend Jithin were travelling on a motorcycle, the accused, in furtherance of their common intention, abused the defacto complainant and his friends in vulgar language, and they later criminally trespassed into the B.A.No.762 of 2024 ## -:3:- house of the defacto complainant. The first accused hit on the head of the younger brother of the defacto complainant with a stone, and the accused 3 and 5 also trespassed into the house of the defacto complainant and assaulted him and his brother. Subsequently, they also hit the defacto complainant with a steel pipe. The defacto complainant and his brother had sustained grievous injuries. If the defacto complainant had not warded of the attack, he would have lost his life. Thus, the accused have committed the above offences. 4. Heard; Sri. Rajesh Chakyat.C., the learned counsel appearing for the petitioner and Smt. Seetha.S, the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no specific overt act alleged against the petitioner. The petitioner has been B.A.No.762 of 2024 ## -:4:- falsely implicated in the crime. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She contended that there is a specific overt act alleged against the petitioner, that he hit the defacto complainant with a stone. Moreover, the petitioner has criminal antecedents, as he is involved in 13 other crimes for committing the offences under the IPC registered against him by various police stations. The petitioner’s 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 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: B.A.No.762 of 2024 -:5:- **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 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; B.A.No.762 of 2024 ## -:6:- (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 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 B.A.No.762 of 2024 ## -:7:- 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 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. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, I am prima facie B.A.No.762 of 2024 ## -:8:- satisfied that the accusations seem to be true. On comprehending the seriousness, gravity, and nature of the offences alleged against the petitioner, that the petitioner is involved in 13 other cases of similar nature, that the petitioner’s custodial interrogation is necessary, and that the recovery is to be effected, I am of the definite view that the petitioner has 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. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** mtk/ 15.02.2024 B.A.No.762 of 2024 -:9:- ## **`APPENDIX OF BAIL APPL. 762/2024`** ``` PETITIONER ANNEXURES ANNEXURE 1 A TRUE COPY OF THE F.I.R IN CRIME NO.1221/2023 OF CHERPU POLICE STATION ANNEXURE 2 A CERTIFIED COPY OF THE ORDER DATED 14.12.2023 IN CRL.M.C.NO.1708/2023 ON THE FILE OF SESSIONS COURT; THRISSUR ```