Kanakaraj v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 BAIL APPL. NO. 388 OF 2024 ``` ``` CRIME NO.488/2023 OF Kanjiramkulam Police Station, ``` ``` Thiruvananthapuram ``` ## **`PETITIONER/S:`** ``` KANAKARAJ AGED 50 YEARS S/O NESAMONEY, THACHANVILA, NEDUKUMMAL P.O., VILAVANCODE, KANYAKUMARI DISTRICT, TAMIL NADU, PIN - 629163 BY ADV LATHEESH SEBASTIAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SRI.C.S HRITHWIK, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.388 of 2024 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No.388 of 2024** ## **-----------------------------------** ## **Dated this the 25[th ] day of January, 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 sole accused in Crime No.488/2023 of the Kanjiramkulam Police Station, Thiruvananthapuram, registered against him, for allegedly committing the offences punishable under Sections 294(b), 308, 323, 324, 447 and 506(ii) of the Indian Penal Code, 1860, _(‘IPC’, for short)._ 3. The gist of the prosecution case is that: around 10.45 p.m on 17.4.2023, the accused trespassed into the 3 Bail Application No.388 of 2024 residential building of the informant and uttered obscene words at him and, thereafter, gave him a blow with an iron rod on his head, which resulted in a head injury. Then the accused attempted to again assault the informant, but he evaded the same. If the iron rod had hit on the place where it was aimed at, it would have resulted in the death of the informant. Thus, the accused has committed the above offences. 4. Heard; Sri. Latheesh Sebastian, the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, the learned Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The very fact that the incident allegedly occurred on 17.4.2023 and the Annexure-1 FIR was registered on 26.4.2023 itself shows the falsity in the crime. The incident occurred nearly a year back. 4 Bail Application No.388 of 2024 Therefore, the investigation in the case is practically complete. The petitioner’s custodial interrogation is not necessary. Hence, the petitioner may be released on bail. 6. The learned Public Prosecutor vehemently opposed the application. He submitted that the petitioner had absconded to the State of Tamil Nadu. It is only recently that he was traced out. The Public Prosecutor also relied on the accident register-cum-wound certificate dated 18.4.2023, to exhibit that the injured had sustained a 10 cm length and 1 cm depth lacerated wound on the scalp, 4 cm length and 0.5 c.m depth wound on the zygomatic arch of the left side of his face, a shoulder dislocation and an abrasion and contusion on the right forearm. The petitioner's custodial interrogation is absolutely necessary and the recovery is to be effected. Hence, letting off the petitioner on bail would hamper with the full and proper investigation of the case. Hence, the application may be dismissed. 5 Bail Application No.388 of 2024 ## 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; (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 6 Bail Application No.388 of 2024 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. ## 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 pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be 7 Bail Application No.388 of 2024 properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 9. After bestowing my anxious consideration to the materials placed on record, the rival submissions made across the Bar, particularly taking into account the nature, gravity and seriousness of the offence alleged against the petitioner, that the investigation in the case is in progress, recovery is to be effected and the petitioner's custodial interrogation is necessary and after examining the accident register-cumwound certificate, I am of the definite view 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 8 Bail Application No.388 of 2024 pre-arrest bail. Consequently, the bail application is dismissed. 10. 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, 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** Sks/ 25.1.2024 9 Bail Application No.388 of 2024 ## **`APPENDIX OF BAIL APPL. 388/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure 1TRUE CITIZEN COPY OF THE FIR IN CRIME NO.488/2023 OF KANJIRAMKULAM POLICE STATION Annexure 2TRUE COPY OF THE ORDER OF THE SESSIONS COURT, THIRUVANANTHAPURAM IN CRL.MC NO.2080/2023 DATED 11.08.2023 ```