Jiju Rajan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945** **BAIL APPL. NO. 11593 OF 2023** **CRIME NO.1466/2023 OF CHALAKKUDY POLICE STATION, THRISSUR AGAINST THE ORDER/JUDGMENT CRMC 1814/2023 OF DISTRICT COURT & SESSIONS** ## **COURT,THRISSUR** ## **PETITIONER/ACCUSED NO.1:** **JIJU RAJAN, AGED 42 YEARS S/O. RAJAN,THATTIL HOUSE, CHALAKUDY, THRISSUR, PIN - 680307** **BY ADVS. SRUTHY K.K M.REVIKRISHNAN P.VIJAYA BHANU (SR.) P.M.RAFIQ AJEESH K.SASI NIKITA J. MENDEZ SRUTHY N. BHAT RAHUL SUNIL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.01.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.11593 OF 2023** **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 petitioner is the first accused in Crime No.1466/2023 of the Chalakudy Police Station, Thrissur, registered against the accused for allegedly committing the offences punishable under Sections 341, 323, 324, 308, 394 and 506 r/w. Section 34 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The gist of the prosecution case is that: the de-facto complainant is an employee of a person named Albin Antony. On 20.11.2023, at about 20.30 hours, the first accused invited the de-facto complainant to his house and when he reached the said house, he demanded the first accused to make a video on Albin Antony, to blackmail him. When the **BAIL APPL.NO.11593 OF 2023** **3** de-facto complainant refused to do the same, the accused in furtherance of their common intention, assaulted the defacto complainant and threatened to do away with him. The first accused assaulted the de-facto complainant with an iron rod on his head. The life of the de-facto complainant was saved because he warded the attack, otherwise it would have resulted in his death. The accused, thereafter, snatched Rs.25,000/- from his pocket. The de-facto complainant sustained injures on his head. Thus, the accused have committed the above offences. 4. Heard; Smt. Sruthy K.K., the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime. The custodial interrogation of the petitioner is not necessary. The petitioner is willing to abide by any stringent condition that may be imposed by this Court **BAIL APPL.NO.11593 OF 2023** **4** and cooperate with the investigating officer. Hence, the application may be allowed. 6. The learned Public Prosecutor strenuously opposed the application. She contended that the specific allegation against the petitioner is that he was the person who hit the defacto-complainant with an iron rod and caused injuries to the defacto-complainant. Had the defacto-complainant not warded off the hit, he would have lost his life. The custodial interrogation of the petitioner is necessary and recovery is to be effected. In addition to the same, the petitioner is a person with criminal antecedents and there are 24 cases registered against him for similar offences before by the Chalakudy, Kalady and Thrissur police stations. If the petitioner is granted an order of pre-arrest bail, there is every likelihood of him committing similar offences and more over it would send a wrong message to the society. Hence, the application may be dismissed. 7. In **Siddharam Satlingappa Mhetre v. State of** **Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme **BAIL APPL.NO.11593 OF 2023** **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 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 **BAIL APPL.NO.11593 OF 2023** **6** 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 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. **BAIL APPL.NO.11593 OF 2023** **7** 8. Likewise, in **Jai Prakash Singh v. State of Bihar & Anr.** [(2012) 4 SCC 379] the Hon'ble Supreme Court has held that an order of pre-arrest bail shall be granted only in exceptional cases where the court is prima facie of the view that the applicant was falsely enroped in crime and that he is not likely to misuse his liberty. 9. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the nature, gravity, and seriousness of the offences alleged against the petitioner, that the investigation in the case is in progress, that the recovery is to be effected and that the petitioner’s custodial interrogation is necessary, and further that the petitioner is a person with severe criminal antecedents, I am of the definite view that the petitioner is not entitled to be granted the extraordinary privilege of an order of pre-arrest bail. Therefore, 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 **BAIL APPL.NO.11593 OF 2023** **8** 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 an application for bail, the jurisdictional Court shall, 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** **shg**