Jaisala K. et al. v. State of Kerala & Station House Officer, Atholi Police Station, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945** **BAIL APPL. NO. 351 OF 2024** **CRIME NO.665/2023 OF Atholy Police Station, Kozhikode AGAINST THE ORDER IN CRMC 2232/2023 OF SESSIONS COURT,KOZHIKODE** ## **PETITIONERS:** 1 JAISALA.K AGED 43 YEARS HIJAS HOUSE, KONGANNUR,POST ATHOLI,KOZHIKODE DIST., PIN - 673315 2 AJITH KUMAR.K AGED 54 YEARS KARUMUNDERIPOYIL HOUSE, MODAKKALLOUR, POST ATHOLI.KOZHIKODE DIST., PIN - 673315 3 MOHANAN.K AGED 63 YEARS NIRMALYAM HOUSE, KAVALAYIL, VELUR,POST ATHOLI, KOZHIKODE DIST., PIN - 673315 4 SURESH.K.K. AGED 66 YEARS THULASI HOUSE, ULLIYERI,POST ULLIYERI,KOZHIKODE DIST., PIN - 673620 5 BINDU RAJAN AGED 49 YEARS CHERIYARAMBATHKANDY HOUSE, VELUWEST, POST ATHOLI,KOZHIKODE DIST., PIN - 673315 6 JAMNAS AGED 31 YEARS VALAYOTTIL HOUSE, ULLIYERI,POSOT ULLIYERI, KOZHIKODE DIST., PIN - 673620 7 MUHAMMED SHAMMEEN.T.P. AGED 36 YEARS THAZHE PULIKKOOL HOUSUE, ULLIYERI, POST ULLIYERI,KOZHIKODE DIST., PIN - 673620 8 SUDHIN.S AGED 29 YEARS THULASI HOUSE, ULLIYERI, POSOT ULLIYERI,KOZHIKODE **BAIL APPL. NO. 351 OF 2024** **2** DIST., PIN – 673620. 9 SATHEESH AGED 42 YEARS, KUZHIPARAMBIL MEETHAL HOUSE, KUNNATHARA, POST ULLIYERI,KOZHIKODE DIST., PIN - 673620 10 SUNIL KUMAMR.E AGED 57 YEARS KILAYALAM, KOLAKKAD, POST ATHOLI, KOZHIKODE DIST., PIN - 673315 BY ADV T.ASAFALI ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICIER, ATHOLI POLICE STATION, ATHOLI,KOZHIKODE DIST., PIN - 673315 ## **OTHER PRESENT:** SR.P.P.SMT.SEETHA.S. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 351 OF 2024** **3** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused Nos.1 to 10 in Crime No.665/2023 of the Atholy Police Station, Kozhikode, registered against the accused for allegedly committing the offences punishable under Secs.143, 145, 147, 149, 283, 332 and 353 of the Indian Penal Code. 3. The gist of the prosecution case is that, on 20.12.2023 at 11.15 a.m, about 100 workers owing allegiance to a political party formed themselves into an unlawful assembly and led a demonstration shouting slogans demanding the police to stop their brutalities. When the police party attempted to restrain the **BAIL APPL. NO. 351 OF 2024** **4** demonstration, some of the police officers sustained injuries, and they were obstructed from discharging their official duties. Thus, the accused have committed the above offences. 4. Heard; Sri.Asaf Ali, the learned senior counsel appearing for the petitioners and Smt.Seetha.S, the learned 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 due their allegiance to the opposition party. The petitioners are willing to abide by any stringent condition imposed by this Court. Moreover, the petitioners custodial interrogation is not necessary. Therefore, the petitioners are entitled to an **BAIL APPL. NO. 351 OF 2024** **5** order of pre-arrest bail. 6. The learned Public Prosecutor strenuously opposed the bail application. She contended that two of the Police Officers sustained grievous injuries including fractures. The investigation is in progress. Two of the accused have surrendered and their interrogation was conducted. The petitioners custodial interrogation is absolutely necessary for the proper and full investigation of the case. All the petitioners have criminal antecedents. If the petitioners are released on bail, there is every likelihood of them intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed. 7. The gist of the prosecution case is that, the accused had formed an unlawful assembly and assaulted the police party and also obstructed them **BAIL APPL. NO. 351 OF 2024** **6** from discharging their official duties. It is evident from the materials on record that two of the Police Officers have sustained grievous injuries, including fractures. 8. The Hon'ble Supreme Court in **Siddharam Satlingappa Mhetre v. State of Maharashtra, [(2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514 : 2010 SCC OnLine SC 1375]** held thus: **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: **BAIL APPL. NO. 351 OF 2024** **7** (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 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. **BAIL APPL. NO. 351 OF 2024** **8** **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. The Hon'ble Supreme Court in **Gurbaksh** ## **Singh Sibbia v. State of Punjab, [(1980) 2 SCC 565** ## **: 1980 SCC (Cri) 465]** has held thus: **21.** The High Court says in its fourth proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a “special case” for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not “unguided or uncanalised”, the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special case” for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a “special case”. We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the **BAIL APPL. NO. 351 OF 2024** **9** context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 10. After bestowing my anxious consideration to the facts and circumstances of the case and the materials on record, particularly taking note of the nature, seriousness and the gravity of the accusations alleged against the petitioners, that some of the petitioners have criminal antecedents and that the custodial interrogation of the petitioners is necessary for the fair and proper investigation of the case, I am of the view that this is not a fit case to exercise the extraordinary powers of this Court under Section 438 of the Code of Criminal Procedure. Therefore, I am not inclined to grant an order of pre-arrest bail to the petitioners. **BAIL APPL. NO. 351 OF 2024** **10** Nonetheless, I am of the view that, in case the petitioners/accused surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, they be produced before the jurisdictional Magistrate having jurisdiction on the date of surrender itself. Then, if the petitioners move applications for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail applications on its merits 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. ma/16.1.2024 Sd/- **C.S.DIAS, JUDGE** **BAIL APPL. NO. 351 OF 2024** **11** ## **APPENDIX OF BAIL APPL. 351/2024** PETITIONER ANNEXURES Annexure A-1 TRUE COPY OF THE FIR NO.0665 OF 2023 OF ATHOLI POLICE STATION,KOZHIKODE DIST. Annexure 2 TRUE COPY OF THE ORDER DT.11-1-2024 MADE IN CRL.M.C.NO.2232/2023 ON THE FILE OF THE COURT OF SESSION,KOZHIKODE