Manoj v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1752 OF 2024 ``` ``` CRIME NO.234/2024 OF CHATHANNOOR POLICE STATION, KOLLAM ``` ## **`PETITIONER/2ND ACCUSED:`** ``` MANOJ AGED 34 YEARS S/O. MOHANAN, VAYALIL PUTHAN VEEDU, MEENAD, NEDUNGOLAN P.O, KOLLAM DISTRICT, PIN - 691334 BY ADVS. BINU GEORGE HEMALATHA ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV SMT. SEETHA S. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.1752 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 1752 OF 2024 ------------------------------------------------------Dated this the 12[th] day of March, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the second accused in Crime No.234/2024 of the Chathannur Police Station, Kollam registered against the accused (twelve in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324 and 307 read with Section 149 of the Indian Penal Code. 3. The gravamen of the prosecution case is that: on 26.02.2024 at around 18.50 hours, the accused in prosecution of their common intention, restrained the ``` 3 ``` ## **`BAIL APPL. NO.1752 OF 2024`** defacto complainant (injured) after forming themselves into an unlawful assembly and with an intention to murder the injured, the accused kicked the injured with legs and the first accused inflicted serious injuries on the injured by using a knife. The accused 2 and 3 also caused injuries to thr injured along with the other accused. Thus, the accused have committed the above offences. 4. Heard; Smt. Binu George, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime, solely because his brother is the first accused. A reading of Annexure A1 ``` 4 ``` ## **`BAIL APPL. NO.1752 OF 2024`** First Information Report would substantiate that, it was the first accused who inflicted the stab injuries on the injured. There is no specific overt act alleged against the petitioner. Therefore, Section 307 IPC will not be attracted as against the petitioner. The said offence has been incorporated against the petitioner, only to deny bail to him. In any given case, 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. She contended that there is a specific overt act alleged against the petitioner and the accused 1 and 3, who have caused the injuries to the injured. She made available the Accident Register cum Wound Certificate dated 04.03.2024, issued by the KIMS Health Hospital, of the injured to substantiate ``` 5 ``` ## **`BAIL APPL. NO.1752 OF 2024`** the nature of injuries sustained by the injured. 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 certainly sabotage the investigation of the crime. Hence, the application may be dismissed. 7. On an evaluation of the prosecution allegation, especially the First Information Statement, it can be gathered that there is a specific overt act alleged against the petitioner, that he along with the accused 1 and 3 have caused the injuries to the injured. 8. 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 ``` 6 ``` ``` BAIL APPL. NO.1752 OF 2024 ``` 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 Satishchandra Ratanlal 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; ``` 7 ``` ``` BAIL APPL. NO.1752 OF 2024 ``` (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 ``` 8 ``` ``` BAIL APPL. NO.1752 OF 2024 ``` 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. ## 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 accusation levelled ``` 9 ``` ## **`BAIL APPL. NO.1752 OF 2024`** against the applicant is only to enrope him in the crime and would misuse his liberty. 10. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially the First Information Statement and the Accident Register cum Wound of the and on Certificate injured, comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary and the recovery is to be effected, I am convinced that the petitioner has 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. ``` 10 ``` ``` BAIL APPL. NO.1752 OF 2024 ``` Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within ten 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 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. **Sd/C.S. DIAS JUDGE** BR ``` 11 ``` ## **`BAIL APPL. NO.1752 OF 2024`** ## **`APPENDIX OF BAIL APPL. 1752/2024`** ``` PETITIONER’S ANNEXURES Annexure A1A TRUE COPY OF FIR IN CRIME NO. 234/2024 OF CHATHANNUR POLICE STATION ``` ``` RESPONDENT’S ANNEXURES: NIL ```