Jyothish, Ananthu T, Sumesh S v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945** **BAIL APPL. NO. 1311 OF 2024** **CRIME NO.109/2024 OF Cherthala Police Station, Alappuzha** ## **PETITIONER/ACCUSED 2 TO 4:** **1 JYOTHISH AGED 34 YEARS S/O GOPI, PUNNAKKAPPALLI VELI, CMC 23, CHERTHALA.P.O, CHERTHALA NORTH, ALAPPUZHA DISTRICT, PIN - 688524 2 ANANTHU.T AGED 25 YEARS S/O THILAKARAJ, VELEEPARAMBIL, CHERTHALA.P.O, CHERTHALA NORTH, ALAPPUZHA DISTRICT, PIN - 688524 3 SUMESH.S AGED 34 YEARS S/O SUKUMARAN, THAYYIL, CHERTHALA.P.O, CHERTHALA NORTH, ALAPPUZHA DISTRICT, PIN - 688524** **BY ADVS. T.P.SANTHOSH KUMAR C.H.ABDUL RASAC** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **sr pp smt seetha s** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.02.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO.1311 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 pre-arrest bail. 2. The petitioners are the accused 2 to 4 in Crime No.109/2024 of the Cherthala Police Station, Alappuzha, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 294(b), 341, 506, 323, 324, 326 and 308 read with Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 14.01.2024 at about 6.00 p.m., the accused, in furtherance of their common intention intercepted the de facto complainant, his brother and his cousin brother, who were travelling on a motor cycle and pushed them down and abused them in vulgar language. When the cousin brother and brother of the de facto complainant tried to prevent the accused from causing any injuries to the de facto complainant, **BAIL APPL. NO.1311 OF 2024** **3** the 1[st] accused hit him using his hands and thereafter, hit on the rare side of his head using a stone. Subsequently, the accused 1 to 4 incessantly bit the de facto complainant, his brother and cousin and the 1[st] accused hit the face of the cousin of the de facto complaint using a knuckle duster, which resulted in fracture of his teeth. The 2[nd] accused intimidated the de facto complainant, his brother and cousin by brandishing a sword stick. Thus, the accused have committed the above offences. 4. Heard; Sri.Santhosh Kumar T.P, 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 subsequent to the filing of the application, the petitioners 1 and 2 (Accused 2 and 3) have already been arrested by the Investigating Officer. Therefore, the petitioners are confining the bail application to the 3[rd] petitioner alone. He submitted that there is no specific overt act alleged **BAIL APPL. NO.1311 OF 2024** **4** against the 3[rd] petitioner. Even going by the prosecution allegation, it was the 1[st] accused who caused the injuries to the de facto complainant and other injured. He drew the attention of this Court to the FIR to substantiate that the offences under Sections 326 and 308 will not be attracted against the 3[rd] petitioner. He submitted that the 3[rd] petitioner is willing to abide by any stringent condition that may be imposed by this Court and cooperate with the investigation. Hence, the 3[rd] petitioner may be granted a order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She contended that, it was the 3[rd] petitioner who handed over the sword stick to the 2[nd] petitioner and he brandished the same and intimidated the de facto complainant and the injured. The 3[rd] petitioner's custodial interrogation is necessary, and recovery is to be effected. She handed over the Accident Register-Cum-Wound Certificate of the injured to substantiate the grievous injury sustained by the de facto complainant, who had **BAIL APPL. NO.1311 OF 2024** **5** suffered a broken tooth and had profuse bleeding. She further submitted that the investigation in the case is only at the nascent stage. If the 3[rd] petitioner is granted an order there is every likelihood of him intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed. 7. Admittedly, the petitioners 1 and 2 have been arrested by the Investigating Officer during the pendency of the Bail Application. The learned counsel for the petitioner submitted that he is confining the bail application to the 3[rd] petitioner alone. 8. On a perusal of materials placed on record, it is seen that the petitioner had already moved a similar application before the Court of Session, Alappuzha, which was dismissed by Annexure-A1 order, on the specific finding that the 3[rd] petitioner has a complicity in the crime because there is a specific overt act alleged against him i.e., he was the one who handed over the sword stick to the 2[nd] petitioner. 9. In **Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694]** the Hon’ble **BAIL APPL. NO.1311 OF 2024** **6** ## 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; **BAIL APPL. NO.1311 OF 2024** **7** (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 **BAIL APPL. NO.1311 OF 2024** **8** 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.1311 OF 2024** **9** 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 a prearrest 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 crime and would misuse his liberty. 11. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, and on comprehending the seriousness, gravity, and nature of the offences alleged against the 3[rd] petitioner, that the 3[rd] petitioner's custodial interrogation is necessary and that the recovery is to be effected, I am convinced that the 3[rd] **BAIL APPL. NO.1311 OF 2024** **10** petitioner is not entitled for an order of pre-arrest bail, since he has not made out any 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. Consequently, the bail application is dismissed. 12. Nonetheless, I direct that, if the 3[rd] 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 3[rd] petitioner move 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