Haridas K Thankappan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 BAIL APPL. NO. 1096 OF 2024 ``` ``` CRIME NO.56/2024 OF Kaliyar Police Station, Idukki ``` ## **`PETITIONER/ACCUSED:`** ``` HARIDAS K THANKAPPAN AGED 47 YEARS S/O THANKAPPAN, KAITTIYANICKAL HOUSE, WEST. KODIKULAM VILLAGE, CHERUTHATTINKARA KARA, THODUPUZHA TALUK., PIN - 685584 ``` ``` BY ADVS. P.CHANDY JOSEPH C.K.VIDYASAGAR ``` ## **`RESPONDENTS/STATE:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2 STATION HOUSE OFFICER KALIYAR POLICE STATION THODUPUZHA, IDUKKI DISTRICT., PIN - 685607 ``` ``` BY SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1096 of 2024 ## -:2:- ## **O R D E R** Dated this the 19[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 sole accused in Crime No.56/2024 of the Kaliyar Police Station, Idukki, registered against him for the offences punishable under Sections 323, 324 and 326 of the Indian Penal Code. 3. The prosecution case is that: on 23.01.2024 at round 06.40 p.m, the accused assaulted the injured with an iron rod and thereby caused a fracture on his left cheekbone. Thereafter, he inflicted another injury on his forehead with a stone and beat him on his left cheek. Thus, the accused has committed the above offences. 4. Heard; Sri. P. Chandy Joseph, learned counsel appearing for the petitioner and Smt. Neema T.V., the B.A.No.1096 of 2024 ## -:3:- learned 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. Annexure A3 FIR is only registered as a counterblast to Annexure 8 FIR, which was registered by the petitioner against the injured. The injured person is a drunkard. Annexure A4 FIR would show that the injured is a history sheeter. The injured frequently trespasses into the houses of the members of the locality and causes problems. At any rate, 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 the petitioner had brutally assaulted the injured with an iron rod and a stone. She made available the Accident Register-CumWound Certificate of the injured, dated 23.01.2024, B.A.No.1096 of 2024 ## -:4:- issued by the Holy Family Hospital, Muthalakodam, to substantiate the fact that the injured had suffered a head injury and a comminuted fracture of the left zygomatic arch. She also contended that the petitioner’s custodial interrogation is necessary and that recovery is to be effected. If the petitioner is let off on bail, it would hamper with the proper investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that the petitioner caused grievous injury to the injured by hitting him with an iron rod and stone. The petitioner had moved to the Court of Session, Thodupuzha, by filing Crl.M.C. No.66/2024. The said application was dismissed by Annexure A10 order, principally on the finding that the petitioner’s custodial interrogation is necessary and recovery is to be effected. 8. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme B.A.No.1096 of 2024 ## -:5:- ## 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 to repeat similar or other offences; (v) Where the accusations have been made B.A.No.1096 of 2024 ## -:6:- 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 discretion vested in the court in all matters should be exercised with care and B.A.No.1096 of 2024 ## -:7:- 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. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the B.A.No.1096 of 2024 ## -:8:- materials placed on record, especially after analysing the Accident Register-Cum-Wound Certificate of the injured, and on comprehending the seriousness, gravity, and nature of the offences alleged against the petitioner, that the petitioner’s 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 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. 10. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves application for bail, the jurisdictional Court shall, B.A.No.1096 of 2024 ## -:9:- untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** mtk/ 19.02.2024 ## B.A.No.1096 of 2024 ## -:10:- ## **`APPENDIX OF BAIL APPL. 1096/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1TRUE PHOTOCOPY OF THE F.I. STATEMENT DATED 24.01.2024 BEFORE THE KALIYAR POLICE STATION IN CRIME NO.56/2024 ``` - `Annexure A2 F I R REGISTERED BY THE KALIYAR POLICE IN CRIME NO.56/2024 DATED 24.01.2024` - `Annexure A3 TRUE COPY OF THE F.I.STATEMENT DATED 27.10.2023 BEFORE THE KALIYAR POLICE STATION IN CRIME NO.576/2024` - `Annexure A4 TRUE COPY OF THE F I R REGISTERED BY THE KALIYAR POLICE IN CRIME NO.576/2024 DATED 27.10.2023` - `Annexure A5 TRUE COPY OF THE F.I.R. IN CRIME NO. 559/23 DATED 19.10.2023 OF KALIYAR POLICE` - `Annexure A6 TRUE COPY OF THE COPY OF THE REGISTERED WILL DATED 14.03.2008` - `Annexure A7 TRUE COPY OF THE F.I.S DATED 23.01.2024 IN CRIME NO. 54/2024` - `Annexure A8 TRUE COPY OF F.I.R. IN CRIME NO.54/2024 UNDER SECTIONS 447, 294 (B), 506, 323, 341 AND 324 OF IPC` - `Annexure A9 TRUE COPY OF THE WOUND CERTIFICATE DATED 23.01.2024 ISSUED FROM THE C M O OF IDUKKI DISTRICT CO-OPERATIVE HOSPITAL, THODUPUZHA` - `Annexure A10 TRUE COPY OF THE ORDER DATED 02.02.2024 IN CRL. M C NO.66/2024 OF THE BY DISTRICT AND SESSIONS COURT, THODUPUZHA.`