Jayaprakash M.S @ Liju v. State of Kerala and Station House Officer, Manimala Police Station, Kottayam District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 BAIL APPL. NO. 1040 OF 2024** **CRIME NO.1297/2023 OF Manimala Police Station, Kottayam** ## **PETITIONER:** **JAYAPRAKASH M.S @ LIJU AGED 38 YEARS S/O. M.K. SOMAN, MUKKADAMANNIL-HOUSE, MUKKADA.P.O, MANIMALA, KANJIRAPPALLY-TALUK, KOTTAYAM-DISTRICT., PIN - 686544** **BY ADVS. K.P.PRASANTH SUNITHA K.G. HARITHA HARIHARAN HASEEB HASSAN.M** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER MANIMALA POLICE STATION, KOTTAYAM DISTRICT, PIN - 686543** **sr pp sri c s hrithwik** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 1040 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 prearrest bail. 2. The petitioner is the sole accused in Crime No.1297/2023 of the Manimala Police Station, registered against the accused for allegedly committing the offences punishable under Sections 341, 324 and 326 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The c r u x of the prosecution case is that: on 25.12.2023, at around 2.00 p.m, the accused had repeatedly beaten the father of the de facto complainant with a crowbar on his leg, which resulted in the fracture of his foot and he also sustained various other injuries. Thus, the accused has committed the above **BAIL APPL. NO. 1040 OF 2024** **3** ## offences. 4. Heard; Sri.K.P.Prasanth, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him and he has been falsely implicated in the crime. The very fact that the incident allegedly took place on 25.12.2023 and FIR was registered on 28.12.2023 proves the falsity in the crime. Section 326 of the IPC is incorporated only for the purpose of denying bail to the petitioner. At any rate, the offence under Section 326 will not be attracted. The investigation in the case is practically completed and recovery has been effected. Therefore, the petitioner's custodial **BAIL APPL. NO. 1040 OF 2024** **4** interrogation is not necessary. Hence, the application may be allowed. 6. The learned Public Prosecutor vehemently opposed the application. He contended that there is a specific overt act alleged against the petitioner that he hit the father of the de facto complainant with a crowbar, which has resulted in a fracture of his foot. He may available the treatment certificate of the injured issued by the Director of Medical Education, Kottayam dated 19.01.2024 to substantiate the fact that the injured had suffered a closed fracture on the 2[nd] , 3[rd] and 4[th] metacarpal of the right foot. He submitted that the petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. **BAIL APPL. NO. 1040 OF 2024** **5** # 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; (112.ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone **BAIL APPL. NO. 1040 OF 2024** **6** imprisonment on conviction by a court in respect of any cognizable offence; (112.iii) The possibility of the applicant to flee from justice; (112.iv) The possibility of the accused's likelihood to repeat similar or other offences; (112.v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (112.vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (112.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; (112.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; (112.ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (112.x) Frivolity in prosecution should always be considered and it is only **BAIL APPL. NO. 1040 OF 2024** **7** 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. 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 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 **BAIL APPL. NO. 1040 OF 2024** **8** facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 9. After bestowing my anxious consideration to the fats, materials placed on record, the rival submission made across the Bar, particularly after going through the treatment certificate of the injured, which shows that injured had suffered a fracture of his metacarpal on his right foot, that prima facie the offences stand attracted, that the investigation in the case is at its preliminary stage, that the custodial interrogation of the petitioner is necessary and recovery is to be effect, I am convinced that the petitioner is not entitled 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. **BAIL APPL. NO. 1040 OF 2024** **9** Consequently, the bail application is dismissed. 9. Nonetheless, I direct that, if the petitioner surrender 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 move an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits. **Sd/-C.S.DIAS JUDGE** lsn