Jayaprakash and Anil Kumar v. State of Kerala and Station House Officer, Venjarammoodu Police Station

# **`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. 1496 OF 2024 CRIME NO.154/2024 OF VENJARAMOODU POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER DATED 13.02.2024 IN CRMC NO.366 OF 2024 OF DISTRICT COURT & SESSIONS COURT, THIRUVANANTHAPURAM ``` ## **`PETITIONERS/ACCUSED 1 AND 2:`** |**`1`**|**`JAYAPRAKASH,`**| |---|---| ||**`AGED 28 YEARS`**| ||**`S/O SATHYA NARAYANAN,ERATTU HOUSE,`**| ||**`KOYMAR PADAM, KODUVAYOOR.P.O.,`**| ||**`PALAKKAD, PIN - 678501`**| |**`2`**|**`ANIL KUMAR,`**| ||**`AGED 56 YEARS`**| ||**`S/O VASUDEVAN, ANIL BHAVAN,`**| ||**`MALACKKALATHUKAVU,KILIMANOOR.P.O.,`**| ||**`THIRUVANANTHAPURAM, PIN - 695601`**| ||**`BY ADV A.S.SHAMMY RAJ`**| ## **`RESPONDENTS/STATE / COMPLAINANT:`** |**`1`**|**`STATE OF KERALA,`**| |---|---| ||**`REPRESENTED BY PUBLIC PROSECUTOR,`**| ||**`HIGH COURT OF KERALA,`**| ||**`ERNAKULAM, PIN - 682031`**| |**`2`**|**`STATION HOUSE OFFICER,`**| ||**`VENJARAMOODU POLICE STATION,`**| ||**`VENJARAMOODU.P.O.,`**| ||**`THIRUVANANTHAPURAM, PIN - 695607`**| ||**`SR PP SMT NEEMA T V`**| ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1496 of 2024 ## -:2:- 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 1 and 2 in Crime No.154/2024 of the Venjarammoodu Police Station, Thiruvananthapuram, registered against them for allegedly committing the offences punishable under Sections 143, 144, 147, 148, 294(b), 341, 323, 324, 326 and 427 r/w Section 149 of the Indian Penal Code, 1860. It is reported that the person who was the first accused has been removed from the array of accused. Accordingly, the petitioners' ranking has been rearranged as the accused 1 and 2. ## B.A.No.1496 of 2024 -:3:- 3. The crux of the prosecution case is that: on 22.01.2024 at around 17.30 hours, the accused formed themselves into an unlawful assembly and attacked the defacto complainant and his friends, and inflicted grievous injuries on them. The first accused hit the defacto complainant with a knuckleduster, fisted him on his left forehead and both his eyes, causing injuries. When his friend tried to intervene, the second accused, along with others, used iron rods and reapers and beat them, and caused injuries to the person named Sreerag. Thus, the accused have committed the above offences. 4. Heard; Sri.A.S. Shammy Raj., the learned counsel appearing for the petitioners and Smt.Neema. T.V., the learned Senior Public Prosecutor appearing for the respondents. ## B.A.No.1496 of 2024 -:4:- 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 offence under Section 326 will not be attracted since the injured have not suffered any grievous injuries. The said offence has been deliberately incorporated for the purpose of denying bail to the petitioners. In any given case, the petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioners may be entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are specific overt acts alleged against the petitioners. They caused injuries to the defacto complainant and other injured. She made available the discharge summary ## B.A.No.1496 of 2024 ## -:5:- issued by the Medical College Hospital, Thiruvananthapuram, dated 23.01.2024, to substantiate the fact, the injured Sreerag, had suffered a traumatic brain injury, and acute subdural hemorrhage of the left temporal region. She submitted that the petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would sabotage the investigation. Hence, the application may be dismissed. 7. The crux of the prosecution allegation against the petitioners is that they, in prosecution of their common intention, had found unlawful assembly and assaulted the defacto complainant and other injured with dangerous weapons and caused grievous injuries to them. 8. The petitioners had filed a similar application ## B.A.No.1496 of 2024 -:6:- before the Court of Session, Thiruvananthapuram, by filing Crl.M.C.366/2024. By Annexure A4 order, the learned Sessions Judge dismissed the application, cardinally on the ground that the petitioners’ custodial interrogation is necessary, the offences alleged against them are prima facie found to be correct, and recovery is to be effected. 9. 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 -:7:- ## B.A.No.1496 of 2024 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 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 ## B.A.No.1496 of 2024 ## -:8:- 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. 10. 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 ## B.A.No.1496 of 2024 ## -:9:- has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 11. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submission made across the Bar, and especially after going through the discharge summary of the injured, which shows that he had suffered a brain injury and also a acute subdural hemorrhage of the left temporal region and he was treated as the inpatient in Medical College Hospital, Thiruvananthapuram, the findings of the learned Sessions Judge in Annexure A4 order, that the petitioners’ custodial interrogation is necessary, the recovery is to be effected, and further on prima facie being satisfied that the offences attributed against the petitioners are found to be justifiable, I am convinced that this is not a fit case to grant an order of B.A.No.1496 of 2024 -:10:- pre-arrest bail. Therefore, the bail application is only to be rejected. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/13.03.24 ## B.A.No.1496 of 2024 ## -:11:- ## **`APPENDIX OF BAIL APPL. 1496/2024`** |**`PETITIONER ANNEXURES`**|**`PETITIONER ANNEXURES`**| |---|---| |**`ANNEXURE A1`**|**`TRUE COPY OF THE F.I.R. IN CRIME`**| ||**`NO.154/2024 OF VENJARAMOODU POLICE`**| ||**`STATION, THIRUVANANTHAPURAM (RURAL)`**| ||**`DISTRICT DATED 2.2.2024`**| |**`ANNEXURE A2`**|**`TRUE COPY OF THE O.P. TICKET`**| ||**`(T102382806230041)`**<br>**`DATED`**<br>**`22.1.2024`**| ||**`ISSUED TO THE 1ST PETITIONER FROM`**| ||**`COMMUNITY`**<br>**`HEALTH`**<br>**`CENTRE,`**| ||**`KANYAKULANGARA, THIRUVANANTHAPURAM`**| |**`ANNEXURE A3`**|**`TRUE COPY OF THE O.P. TICKET`**| ||**`(T102383004230071)`**<br>**`DATED`**<br>**`22.1.2024`**| ||**`ISSUED TO THE 2ND PETITIONER FROM`**| ||**`COMMUNITY`**<br>**`HEALTH`**<br>**`CENTRE,`**| ||**`KANYAKULANGARA, THIRUVANANTHAPURAM`**| |**`ANNEXURE A4`**|**`FREE COPY OF THE ORDER DATED 13.2.2024`**| ||**`IN CRL.M.C. NO.366/2024 OF SESSIONS`**| ||**`COURT, THIRUVANANTHAPURAM`**|