Manjesh Mohan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945** **BAIL APPL. NO. 1890 OF 2024** **CRIME NO.115/2024 OF Koodal Police Station, Pathanamthitta PETITIONER/ACCUSED NO.1:** **MANJESH MOHAN AGED 42 YEARS S/O MOHANAN MANJU VILASAM,ATHIRUNKAL P.O KARAKKAKUZHY,KOODAL,KONNI TALUK, PATHANAMTHITTA DISTRICT, PIN - 689693** **BY ADV UNNI SEBASTIAN KAPPEN** ## **RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031** **pp smt nima jacob** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO.1890 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 petitioner is the 1[st] accused in Crime No.115/2024 of the Koodal Police Station, Pathanamthitta, registered against the accused (two in number) for allegedly committing the offences punishable under Sections 294(b), 341, 506, 323, 324, 325 and 308 read with Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 18.02.2024 at about 21.45 hours, the 1[st] accused had hit on the head of the de facto complainant using an iron rod resulting in fracture of his bone. Subsequently, the 2[nd] accused had wrongfully restrained the de facto complainant and the 1[st] accused again punched the de facto complainant's nose with using his hand. When a relative of de facto complainant attempted to intervene in the matter, he **BAIL APPL. NO.1890 OF 2024** **3** was also hit with an iron rod. In the incident, the de fact complainant had lost a two sovereigns gold chain worth Rs.26,000/- Thus, the accused have committed the above offences. 4. Heard; Sri.Unni Sebastain Kappen, the learned counsel appearing for the petitioner and Smt. Shynimol V.O, the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. A reading of First Information Report would clearly substantiate that the offence under Section 308 will not be attracted. The petitioner's custodial interrogation is not necessary and not recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that the petitioner had used an iron rod and hit on the head of the de facto complainant and sustained a fracture of **BAIL APPL. NO.1890 OF 2024** **4** his nasal bone. She made available the Accident Register-Cum-Wound Certificate to substantiate the grievous injury suffered by the de facto complainant. She submitted that the petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. A reading of the First Information Report would show that there is specific overt act alleged against the petitioner, that is he used an iron rod and hit on the head of the de facto complainant, who suffered a nasal bone fracture. 8. The petitioner had moved a similar application before the Court of Session, Pathanamthitta by filing Crl.M.P.No.1124/2024. The learned Sessions Judge, by Annexure-A order, dismissed the application on the ground that the petitioner's custodial interrogation is necessary and recovery is to be effected. **BAIL APPL. NO.1890 OF 2024** **5** 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 **BAIL APPL. NO.1890 OF 2024** **6** 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 **BAIL APPL. NO.1890 OF 2024** **7** 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. “ **BAIL APPL. NO.1890 OF 2024** **8** 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 petitioner, that the petitioner's custodial **BAIL APPL. NO.1890 OF 2024** **9** 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. 12. 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 move application for bail, the jurisdictional Court shall consider the bail application on its merits. **C.S.DIAS JUDGE** lsn