JITHU P v. State of Kerala

# **`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. 1462 OF 2024`** ``` CRIME NO.67/2024 OF KOVALAM POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER/2ND ACCUSED:`** ``` JITHU P, AGED 25 YEARS S/O PADMAKUMAR, 3/143, KAILAS, CHIRAYIL, MUTTAYCADU P.O., THIRUVANANTHAPURAM, PIN - 695523 ``` ``` BY ADVS. SAMPATH V. TOMS AMBROSE JUDE DCRUZ ``` ## **`RESPONDENTS/STATE:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER, KOVALAM POLICE STATION, THIRUVANANTHAPURAM, (CRIME NO: 67/2024 OF KOVALAM POLICE STATION), PIN - 695527`** ``` BY ADV SMT. SEETHA S. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.1462 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 1462 OF 2024 ------------------------------------------------------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 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the second accused in Crime No.67/2024 of the Kovalam Police Station, Thiruvananthapuram registered against the accused (four in number) for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324, 308 and 307 read with Section 149 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 21.01.2024 at around 22.00 hours, while the accused had collectively attacked the defacto complainant and ``` 3 ``` ``` BAIL APPL. NO.1462 OF 2024 ``` attempted to murder him. The third accused had wrongfully restrained the defacto complainant and the first accused slashed him with a chopper on his back and punched him on his face. The second accused hit the defacto complainant on his head with an iron object and caused an injury. Then the first accused hacked the defacto complainant on his head with a chopper and inflicted a cut injury on his head and the fourth accused kicked him and he was lying helpless on the ground. Thus, the accused have committed the above offences. 4. Heard; Sri. Sampath V. Toms the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor. 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. By above stretch ``` 4 ``` ``` BAIL APPL. NO.1462 OF 2024 ``` of imagination can Sections 308 and 307 IPC be attributed against the petitioner. The said offences have been incorporated only for the purpose of denying bail to the petitioner. Moreover, by Annexure 4 order, this Court has granted an order of pre-arrest bail to the first accused, considering the fact that the defacto complainant had not suffered any serious injures as per the wound certificate dated 21.01.2024. The very fact that the defacto complainant has not identified the petitioner, who is his nephew, proves the falsity in the crime. In any given case, the petitioner’s custodial is not and no interrogation necessary recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner cannot seek any parity with the first accused. In fact, this Court granted an order of pre- ``` 5 ``` ``` BAIL APPL. NO.1462 OF 2024 ``` arrest bail to the first accused principally, for the reason that there was no such injury reflected in the Accident Register cum Wound Certificate. She made available the discharge summary of the injured dated 23.01.2024, issued by the Al-Arif Hospital, to establish the fact the injured had suffered multiple injuries over his head and he was treated at the hospital for one day. She submitted that there is a specific overt act alleged against the petitioner, since he hit the defacto complainant with an iron rod. If the petitioner is granted an order of pre-arrest bail, it would sabotage the investigation and he would intimidate the witnesses and tamper with the evidence. She submitted that the petitioner’s custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. 7. On an evaluation of the prosecution allegation, it is seen there is a specific overt act alleged against ``` 6 ``` ``` BAIL APPL. NO.1462 OF 2024 ``` the petitioner, that he hit the defacto complainant with an iron rod on his head. The contention of the learned counsel for the petitioner that the first accused was granted an order of pre-arrest bail, is not appealing to this Court, because then the prosecution had only handed over the Accident Register cum Wound Certificate, which prima facie did not show that the injured had suffered any grievous injures. However, the discharge summary now handed over by the learned Public Prosecutor shows that the injured had suffered multiple injuries over his head, which obviously attracts the offence under Section 307 IPC. 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 be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to ``` 7 ``` ``` BAIL APPL. NO.1462 OF 2024 ``` 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 Satishchandra Ratanlal 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 ``` 8 ``` ``` BAIL APPL. NO.1462 OF 2024 ``` 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. ``` 9 ``` ``` BAIL APPL. NO.1462 OF 2024 ``` **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 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 facie satisfied that the accusation levelled against the applicant is only to enrope him in the ``` 10 ``` ``` BAIL APPL. NO.1462 OF 2024 ``` crime and would misuse his liberty. 10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, particularly the discharge summary dated 23.01.2024 of the injured, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary and the recovery is to be effected, I am convinced that the petitioner has not made out exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within ten ``` 11 ``` ``` BAIL APPL. NO.1462 OF 2024 ``` 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 application for bail, the jurisdictional Court shall, consider the bail application on its merits. 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** BR ``` 12 ``` ``` BAIL APPL. NO.1462 OF 2024 ``` ## **`APPENDIX OF BAIL APPL. 1462/2024`** |**`PETITIONER’S`**|**`ANNEXURES`**| |---|---| |**`Annexure 1`**|**`TRUE COPY OF THE FIRST INFORMATION`**| ||**`REPORT DT. 22.01.2024 IN CRIME NO:`**| ||**`67/2024 OF KOVALAM POLICE STATION,`**| ||**`THIRUVANANTHAPURAM`**| |**`Annexure 2`**|**`TRUE COPY OF THE PETITION IN CRL. M.C.`**| ||**`NO: 365/2024 DATED 06.02.2024 FILED BY`**| ||**`THE PETITIONER BEFORE THE PRINCIPAL`**| ||**`SESSIONS COURT, THIRUVANANTHAPURAM`**| |**`Annexure 3`**|**`TRUE COPY OF THE ORDER DT. 17.02.2024`**| ||**`IN CRL. M.C. NO: 365/2024 OF THE`**| ||**`LEARNED`**<br>**`SESSIONS`**<br>**`JUDGE,`**| ||**`THIRUVANANTHAPURAM`**| |**`Annexure 4`**|**`TRUE COPY OF THE ORDER DATED 12.02.2024`**| ||**`IN BAIL APPLICATION NO: 898/2024 ISSUED`**| ||**`BY THE HON'BLE HIGH COURT OF KERALA`**| |**`Annexure 5`**|**`TRUE COPY OF THE FIRST INFORMATION`**| ||**`REPORT DT. 24.01.2024 IN CRIME NO:`**| ||**`75/2024 OF KOVALAM POLICE STATION,`**| ||**`THIRUVANANTHAPURAM`**| ## **`RESPONDENT’S ANNEXURES: NIL`**