Hemanta Kumar, Hajeth, and Aadith v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945** ## **BAIL APPL. NO. 325 OF 2024** **CRIME NO.1095/2023 OF Kuzhalmannam Police Station, Palakkad PETITIONER/S:** 1 HEMANTHA KUMAR AGED 61 YEARS S/O KOCHAPPAN NELLIYAMPARAMBU, THANNERAMKADU, MATHUR PO, ALATHUR, PALAKKAD., PIN - 678571 2 HAJEETH AGED 25 YEARS S/O HEMANTHA KUMAR, NELLIYAMPARAMBU, THANNERAMKADU, MATHUR PO, ALATHUR, PALAKKAD., PIN - 678571 3 AADITH AGED 22 YEARS S/O HEMANTHA KUMAR, NELLIYAMPARAMBU, THANNERAMKADU, MATHUR PO, ALATHUR, PALAKKAD., PIN - 678571 BY ADVS. SAJAN VARGHEESE K. LIJU. M.P ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 DILEESH ( SOUGHT TO BE IMPLEADED ) S/O NARAYANAN, KULAKURISSY HOUSE, PALLANCHATHANNUR, MATHUR P O, PALAKKAD DISTRICT ( SOUGHT TO BE IMPLEADED ) BY ADV Baby Mathew SR PP. SMT.NEEMA T.V. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 325 OF 2024 2 ## **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 1 to 3 in Crime No.1095/2023 of the Kuzhalmannam Police Station, Palakkad, registered against the accused for allegedly committing the offences punishable under Sections 341, 326, 323 and 294(b) r/w Section 34 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The gist of the prosecution case is that: on 16.12.2023 at around 8 p.m., while the first informant (victim) was riding his motor cycle through a public road, the accused, who are the relatives of the wife of the victim, wrongfully restrained the victim, abused him in vulgar language and the 1[st] accused hit him on his head with hands, the 3[rd] accused hit him on his face with his hands and the 2[nd] accused hit him with some dangerous weapon on his nose and the defacto complainant suffered BAIL APPL. NO. 325 OF 2024 3 a fracture of the nasal bone. Thus, the accused have committed the above offences. 4. Heard; Sri. Sajan Varghese K., the learned counsel appearing for the petitioners, Smt. Neema T.V., the learned Senior Public Prosecutor and Sri.Baby Mathew, the learned counsel appearing for the defacto complainant/intervenor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. There has been some matrimonial dispute between the petitioners' family and the family of the victim. The petitioners have been falsely implicated in the crime. Section 326 of the Code has been incorporated for the sole purpose of denying bail to the petitioners. The victim was in inebriated condition. Actually, the victim fell on the ground and sustained the injuries. The very fact that the FIR was lodged on the subsequent date proves the falsity in the crime. At any rate, the petitioners' custodial interrogation is not necessary. Hence, the application may be allowed. BAIL APPL. NO. 325 OF 2024 4 6. The learned Public Prosecutor seriously opposed the application. She contended that there are specific overt acts alleged against the petitioners. She made available the treatment record of the victim to substantiate the fact that he had suffered a nasal fracture and was treated in the District Hospital, Palakkad on 02.01.2024. She contended that the petitioners' custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. 7. The learned counsel appearing for the victim/intervenor submitted that all the petitioners had caused serious injuries to the victim. The victim has suffered a fracture on his nasal bone. The victim has not recovered from the injury. The custodial interrogation of the petitioners is necessary. Hence, the application may be dismissed. 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 BAIL APPL. NO. 325 OF 2024 5 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; (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 BAIL APPL. NO. 325 OF 2024 6 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 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 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 BAIL APPL. NO. 325 OF 2024 7 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. 10. On a consideration of the facts, the materials placed on record, the rival submissions made across the Bar, especially after perusing the treatment records of the defacto complainant/injured, and on comprehending the nature, seriousness and gravity of the offence alleged against the petitioners, that the custodial interrogation of the petitioners is necessary and recovery is to be effected, I am of the definite view that the petitioners have not made out any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioners surrenders before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be BAIL APPL. NO. 325 OF 2024 8 produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, untrammeled 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** Rkc/09.02.24 BAIL APPL. NO. 325 OF 2024 9 ## **APPENDIX OF BAIL APPL. 325/2024** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE FIR DATED 17-12-2023 IN CRIME 1095/2023 OF KUZHALMANNAM POLICE STATION, PALAKKAD. Annexure 2 TRUE COPY OF THE COMPLAINT DATED 20.12.2023 ADDRESSED TO THE SUB INSPECTOR, PUDUNAGARAM POLICE STATION . Annexure 3 TRUE COPY OF THE ORDER DATED 09.01.24 PASSED IN CRL.M.C NO.6410/23 ON THE FILE OF SESSIONS COURT, PALAKKAD RESPONDENT ANNEXURES Annexure-R2(a) A TRUE PHOTO OF THE PETITIONER'S INJURIES Annexure-2(b) A TRUE COPY OF THE CAUSALITY OP DATED 16/12/2023 ISSUED FROM COMMUNITY HEALTH CENTER, KUZHALMANNAM, Annexure-R2(c) A TRUE COPY OF THE TREATMENT CERTIFICATE DATED 2/1/2024 ISSUED FROM DISTRICT HOSPITAL, PALAKKAD