K.P. Sinto Thomas and others 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. 1093 OF 2024** **CRIME NO.128/2024 OF ERNAKULAM SOUTH POLICE STATION, ERNAKULAM** **AGAINST THE ORDER/JUDGMENT DATED 05.02.2024 IN CRMC NO.240 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **PETITIONERS/ACCUSED NOS.1 TO 4 & SUSPECTED ACCUSED:** - **1 K.P. SINTO THOMAS, AGED 19 YEARS S/O PETER, KONNOPARAMBIL HOUSE, KAIRALI NAGAR, KONTHURUTHY, KOCHI, PIN - 682013** - **2 ALLEN SHAIJU, AGED 21 YEARS S/O. SAIJU JOSE, KAVUNGA HOUSE,RAJIV NAGAR, KONTHURUTHY, KOCHI, PIN - 682013** - **3 ASHLINSHAIJU, AGED 19 YEARS S/O. SAIJU JOSE, KAVUNGA HOUSE,RAJIV NAGAR, KONTHURUTHY, KOCHI, PIN - 682013** - **4 AKBAR, AGED 19 YEARS S/A. ASHRAF, KAVUVATHUKKAL HOUSE,FRIENDSHIP NAGAR, PANAMPILLY NAGAR, KOCHI, PIN - 682036** - **5 CHRISTY JOHN, AGED 19 YEARS S/A. JOHN, VELIYANTHARAPUTHEN VEEDU,JUBILEE NAGAR, KONTHURUTHY, KOCHI, PIN - 682013** **BY ADV MANU ROY** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **BAIL APPL.NO.1093 OF 2024** **2** **2 THE STATION HOUSE OFFICER, ERNAKULAM TOWN SOUTH POLICE STATION, KOCHI, PIN - 682015** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.1093 OF 2024** **3** ## **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 1 to 5 in Crime No.128/2024 of the Ernakulam Town South Police Station, Ernakulam, registered against them for allegedly committing the offences punishable under Sections 323, 324, 325, 326, 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 accused 1 to 3, there happened to be an altercation between the parties and the first accused threw a glass-tumbler on the face of the defacto-complainant and the other accused assaulted him with their hands. The defacto-complainant had sustained **BAIL APPL.NO.1093 OF 2024** **4** grievous injuries. Hence, the accused have committed the above offences. 4. Heard; Sri.Manu Roy, the learned counsel appearing for the petitioners and Smt. Seetha S, the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of the FIR and the FIS would establish that the offences under Sections 308 and 326 will not be attracted. The said offences have been incorporated only for the purpose of denying bail to the petitioners. Annexure A1 pendrive containing the video footage would show the actual incident. It was the defactocomplainant who attempted to inflict the injuries on the second petitioner. Out of the said incident, the present crime has emerged. The petitioners are law abiding citizens, having no criminal antecedents. The petitioners' custodial interrogation is not necessary. The petitioners are willing to **BAIL APPL.NO.1093 OF 2024** **5** abide by any stringent condition that may be imposed by this Court and cooperate with the Investigating Officer. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that there are specific overt acts alleged against each of the petitioners. The fifth petitioner has already been arrested. She made available the accident register cum wound certificate of the defactocomplainant/injured issued by the Medical College Hospital, Kottayam dated 20.01.2024 to substantiate that the injured had suffered a facial fracture and soft tissue injury and also the injuries to his head. He was treated as inpatient from 20.01.2024 to 21.01.2024. It is submitted that the petitioners' custodial interrogation is necessary and recoveries have to be effected. If the petitioners are granted an order of pre-arrest bail, it would sabotage the investigation. Hence, the application may be dismissed. 7. Indisputably, the fifth petitioner has been arrested during the pendency of the present bail application. **BAIL APPL.NO.1093 OF 2024** **6** Therefore, the application is confined to the petitioners 1 to 4/accused 1 to 4. 8. The crux of the prosecution allegation against the accused is that, they in furtherance of their common intention, assaulted the defacto-complainant who has 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, the accusations attributed against the petitioners seems to be true. 9. 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 **BAIL APPL.NO.1093 OF 2024** **7** 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 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 **BAIL APPL.NO.1093 OF 2024** **8** 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. 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 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. 11. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions **BAIL APPL.NO.1093 OF 2024** **9** made across the Bar, especially taking into account the discharge card of the injured and on comprehending the nature, seriousness and gravity of the offences alleged against the petitioners and the serious injuries sustained by the injured, that the petitioners' custodial interrogation is necessary and that the recovery is to be effected, I am convinced that the petitioners have 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 petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall consider the bail application on its merits. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating **BAIL APPL.NO.1093 OF 2024** **10** Officer shall be free to arrest the petitioners as if no order has been passed in this case. **Sd/C.S.DIAS JUDGE** **shg**