Kunjumon @ Antony and Joyal v. State of Kerala and Station House Officer, Kuthiathodu Police Station

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 BAIL APPL. NO. 1642 OF 2024 ``` ``` CRIME NO.93/2024 OF KURATHIKADU POLICE STATION, ALAPPUZHA ``` ## **`PETITIONERS/ACCUSED:`** ``` 1 KUNJUMON @ ANTONY AGED 32 YEARS ``` ``` S/O. PETER KURISINGAL HOUSE, THURAVOOR, PALLITHODE CHERTHALA, ALAPPUZHA DIST., PIN - 688540 ``` ``` 2 JOYAL AGED 21 YEARS ``` ``` S/O. PETER, KURISINGAL HOUSE, THURAVOOR, PALLITHODE CHERTHALA, ALAPPUZHA DIST, PIN - 688540 ``` ``` BY ADVS. FRANKLIN ARACKAL I.J.AUGUSTINE ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2 STATION HOUSE OFFICER KUTHIATHOD POLICE STATION, REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`BY SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1642 of 2024 ## -:2:- Dated this the 11[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 petitioners are the accused 1 and 2 in Crime No.93/2024 of the Kuthiathodu Police Station, Alappuzha, registered against them for allegedly committing the offences punishable under Sections 324 and 307 read with Section 34 of the Indian Penal Code, 1860. 3. The essence of the prosecution case is that: on 29.01.2024 at around 16.00 hours, the accused, in furtherance of their common intention and out of their previous animosity, trespassed into the hatchery run by one Bastin, wherein the defacto complainant (injured) ## B.A.No.1642 of 2024 ## -:3:- was working, and the first accused hacked the injured on his head twice using a sickle and the second accused hit him on his head with an iron rod causing grievous injuries to the injured. Thus, the accused have committed the above offences. 4. Heard; Sri.Franklin Arackal, the learned counsel appearing for the petitioners and Smt.Seetha.S., the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. In fact, there is a countercase that has been registered against the injured for causing injuries to the petitioners. Annexure A2 FIR was registered in connection with the incident that occurred on the same day, prior to the B.A.No.1642 of 2024 -:4:- incident that is alleged in Annexure A1 FIR. This by itself proves the falsity in Annexure A1 FIR. The alleged incident occurred out of a sudden provocation. At any rate, the offence under Section 307 will not be attracted. The petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She contended that the petitioners have caused grievous injuries to the injured. She made available the Accident Register-Cum-Wound Certificate dated 29.01.2024, of the Taluk Hospital, Thuravoor, to substantiate the grievous injuries sustained by the injured on his head as well as his right forearm. She submitted that the petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it ## B.A.No.1642 of 2024 ## -:5:- would hamper with the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioners is that they, in furtherance of their common intention, had trespassed into the hatchery where the defacto complainant was working and hacked him with dangerous weapons, and caused grievous injuries to him. The Accident Register- Cum-wound Certificate of the injured corroborates with the allegation made by the prosecution. 8. The petitioners had moved to the Court of Session, Alappuzha, by filing Crl.M.P. No.645/2024. By Annexure A3 order, the learned Sessions Judge, after taking note of the serious injuries sustained by the injured and also considering the fact that the investigation is only at the nascent stage, that the petitioners’ custodial interrogation is necessary and ## B.A.No.1642 of 2024 ## -:6:- is to be dismissed the said recovery effected, application. 9. 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; ## B.A.No.1642 of 2024 ## -:7:- (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 ## B.A.No.1642 of 2024 ## -:8:- 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 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 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. 11. After bestowing my anxious consideration to the facts, the materials placed on record, the rival ## B.A.No.1642 of 2024 ## -:9:- submission made across the Bar, and particularly taking note of the Accident Register-Cum-Wound Certificate of the injured, the findings of the learned Sessions Judge in Annexure A3 order, I am not convinced that the petitioners have 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. Sd/- **C.S.DIAS,JUDGE** mtk/11.03.24 B.A.No.1642 of 2024 -:10:- ## **`APPENDIX OF BAIL APPL. 1642/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1THE TRUE COPY OF THE FIR IN CRIME NO. 93/2024 OF PALLITHODE POLICE STATION DATED 29.1.2024 ANNEXURE A2TRUE COPY OF THE CRIME REGISTERED 95/2024 DATED 29.1.2024 OF KUTHIATHODE POLICE STATION ANNEXURE A3THE TRUE COPY OF THE DISMISSAL ORDER OF HON'BLE PRINCPLE SESSIONS COURT, ALAPPUZHA IN CRL.M.P. 645/2024 DATED 16.2.2024 ```