GOKUL G NATH v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 BAIL APPL. NO. 1500 OF 2024 ``` ``` CRIME NO.833/2023 OF KURATHIKADU POLICE STATION, ALAPPUZHA AGAINST THE ORDER DATED 11.01.2024 IN CRMP NO.35 OF 2024 OF DISTRICT & SESSIONS COURT, ALAPPUZHA ``` ## **`PETITIONERS/ACCUSED:`** - **`1 GOKUL G NATH AGED 26 YEARS`** - **`S/O GOPINATHAN, G.G. NIVAS, CHERIKKALA MURI, KAYAMKULAM TALUK , ALAPPUZHA DISTRICT., PIN - 690502`** - **`2 ANOOP A AGED 18 YEARS S/O CHINNU BHAVANAM, BHARANIKAVU SOUTH , BHARANIKAVU (PO)., MAVELIKKARA TALUK, ALAPPUZHA DISTRICT., PIN - 690503`** - **`3 SHAMEEM B AGED 26 YEARS S/O BIJU MON B, KATTIRETHU VADAKKATHIL , PULLIKANAKKU P.O, KRISHNAPURAM KAYAMKULAM VILLAGE , ALAPPUZHA DISTRICT., PIN - 690537`** ``` BY ADVS. AJITH MURALI SWAPNA VIJAYAN MOHANAN M.K. ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031`** - **`2 THE STATION HOUSE OFFICER KURATHIKADU POLICE STATION, KURATHIKADU , ALAPPUZHA DISTRICT., PIN - 690107`** - **`3 PETER AGED 28 YEARS`** - **`S/O ALEX, ALEX VILLA, KADUVINAL MURI,`** B.A.No.1500 of 2024 -:2:- ``` VALLIKUNNAM VILLAGE , MAVELIKKARA TALUK, ALAPPUZHA DISTRICT., PIN - 690501 ``` ``` 4VISWARAL AGED 29 YEARS ``` ``` S/O VISHWANATHAN ACHARY, OLEZHUTHIL VEETTIL, KADUVINAL MURIYIL, VALLIKUNNAM VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT., PIN - 690501 ``` ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## B.A.No.1500 of 2024 ## -:3:- ## Dated this the 13[th] day of March, 2024 ## **O R D E R** 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 2, 12 and 13 in Crime No.833/2023 of the Kurathikadu Police Station, alappuzha, registered against the accused (13 in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 149, 323, 324, and 307 r/w Section 149 of the Indian Penal Code, 1860. 3. The gravamen of the prosecution case is that: on 18.12.2023 at around 23.00 hours, the accused, in prosecution of their common intention, had formed themselves into an unlawful assembly to commit the murder of the defacto complainant, went to his house, ## B.A.No.1500 of 2024 -:4:- attacked him and his friends, and they sustained grievous injuries. When one of the friends attempted to escape from the place of occurrence, the accused beat him on his head with sticks, and he also suffered grievous injuries. Thus, the accused have committed the above offences. 4. Heard; Sri.Ajith Murali., the learned counsel appearing for the petitioners and Sri. C.S. Hrithwik., 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. The subject matter in dispute between the petitioners and the defacto complainant has been amicably settled out of court, and the defacto complainant has executed Annexure C affidavit, stating that he has no objection in the ## B.A.No.1500 of 2024 -:5:- petitioner being granted an order of pre-arrest bail. The other accused have been enlarged on bail. The petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that the petitioners had, in prosecution of their common intention, formed into an unlawful assembly, and caused grievous injuries to the defacto complainant, who suffered fractures of the nasal bone, fractures of the orbit, which were minimally displaced, and he had to be put on ventilating support. He made available the discharge summary issued by the St. Gregorios Medical Mission Hospital, Parumala, dated 06.01.2024, to substantiate his assertion. He submitted that the petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted ## B.A.No.1500 of 2024 -:6:- an order of pre-arrest bail, they would tamper with evidence and sabotage 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 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 B.A.No.1500 of 2024 -:7:- 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. **126** . We deem it appropriate to reiterate and assert that ## B.A.No.1500 of 2024 ## -:8:- 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. 9. After bestowing my anxious consideration to the facts, the materials placed on record, the rival B.A.No.1500 of 2024 -:9:- submission made across the Bar, and especially after going through the discharge summary of the injured and on comprehending the seriousness, gravity, and nature of the accusations levelled against the petitioners, I am prima facie convinced that the accusations attributed against the petitioners are justifiable, that the petitioners’ custodial interrogation is necessary and recovery is to be effected. Hence, I am convinced that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/13.03.24 B.A.No.1500 of 2024 ## -:10:- ## **`APPENDIX OF BAIL APPL. 1500/2024`** ``` PETITIONER ANNEXURES ANNEXURE-AA PHOTOCOPY OF THE FIR IN CRIME NO. 833/2023 OF KURATHIKKADU POLICE STATION DATED 19.12.2023. ANNEXURE-BA PHOTOCOPY OF THE ORDER OF THE SESSIONSCOURT,ALAPPUZHAIN CRL.M.P.NO.35/2024 DATED 11.1.2024. ANNEXURE-CA TRUE COPY OF THE AFFIDAVIT OF THE 4TH RESPONDENT DATED 29.12.2023. ```