K P Sinto Thomas v. State of Kerala

1 Bail Application No. 2478 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 BAIL APPL. NO. 2478 OF 2024 ``` ``` CRIME NO.128/2024 OF Ernakulam South Police Station, Ernakulam PETITIONER/S: ``` ``` K P SINTO THOMAS AGED 19 YEARS S/O PETER K. V., KANNOPARAMBIL HOUSE, KAIRALI NAGAR, KONTHURUTHI ROAD, THEVARA P.O., KOCHI, PIN - 682013 BY ADVS. AMEENA.R SOHAIL MOHAMMED ANSARY ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA TRHOUGH SHO, ERNAKULAM TOWN SOUTH POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` OTHER PRESENT: ``` ``` Sr PP Sri CS Hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 2478 of 2024 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No. 2478 of 2024** **-----------------------------------** Dated this the 25[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 petitioner is the second accused in Crime No.128/2024 of the Ernakulam Town South Police Station, Ernakulam, registered against the accused ( five in number), for allegedly committing the offences punishable under Sections 323, 324, 325, 326 and 308 r/w.S. 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 19.01.2024, at around 22.10 hours, while the defactocomplainant had gone to a tea shop near Kadavanthra, due to the previous animosity between him and the 3 Bail Application No. 2478 of 2024 accused 1 to 3, there happened to be an altercation between the parties and the first accused threw a glasstumbler on the face of the defacto-complainant and the other accused assaulted him with their hands. The defacto-complainant had sustained grievous injuries. Hence, the accused have committed the above offences. 4. Heard; Smt.Ameena R, the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioner vehemently argued that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. Annexure A1 order would show that the de facto complainant is a history sheeter because he is involved in several other cases. He has deliberately implicated the petitioner in the present crime only to extract money from the petitioner. In fact, the de facto complainant has demanded an amount of Rs.8/- Lakh to settle the present crime. The offences under Secs 308 4 Bail Application No. 2478 of 2024 and 326 will not be attracted. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He made available the accident register cum wound certificate of the defacto-complainant/injured issued by the Medical College Hospital, Kottayam dated 20.01.2024 to substantiate the fact that the injured had suffered a facial fracture and soft tissue injury to his head. He was treated as inpatient from 20.01.2024 to 21.01.2024. It is submitted that the application filed by the other accused has already been rejected by this Court as per Annexure-A7 order. In fact, the other accused have already surrendered before the Investigating Officer and their arrest has been recorded. If the petitioner is 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 accused is that, they in furtherance of their common intention, assaulted the defacto-complainant who has 5 Bail Application No. 2478 of 2024 suffered grievous injuries as evidenced by the discharge card issued by the Medical College Hospital, Kottayam dated 20.01.2024. On evaluation of the materials placed on record, especially the discharge card, prima facie, it shows the involvement of the petitioner in the crime. 8. In S **iddharam 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;_ _(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone_ 6 Bail Application No. 2478 of 2024 _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 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_ 7 Bail Application No. 2478 of 2024 _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 accusations levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 10. After bestowing my anxious consideration to the facts, the materials placed on record and the rival submissions made across the Bar, especially taking into account the card of the and on discharge injured comprehending the nature, seriousness and gravity of the offences alleged against the petitioner and the serious injuries sustained by the injured, that the petitioner’s 8 Bail Application No. 2478 of 2024 custodial interrogation is necessary and that the recovery is to be effected, I am convinced that the petitioner 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. Nonetheless, I direct that, if the petitioner 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 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. ``` sks/25.3.2024 ``` ``` sd/- C.S.DIAS,JUDGE ```