Mathukutty P.V. @ Saji v State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 BAIL APPL. NO. 2876 OF 2024 ``` ``` CRIME NO.144/2024 OF Erumeli Police Station, Kottayam AGAINST THE ORDER DATED 21.03.2024 IN CRMP NO.595 OF 2024 OF DISTRICT COURT & SESSIONS COURT,KOTTAYAM ``` ## **`PETITIONER:`** ``` MATHUKUTTY P.V @ SAJI, AGED 46 YEARS S/O VARGHESE, PUTHENVEETTIL HOUSE, KANAMALA P.O, ARATTUKAYAM, KOTTAYAM DISTRICT, PIN - 686510 BY ADVS. MANU RAMACHANDRAN R.RAJESH (VARKALA) M.KIRANLAL T.S.SARATH SAMEER M NAIR SAILAKSHMI MENON JOTHISHA K.A. SHIFANA M. ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER, ERUMELI POLICE STATION, KOTTAYAM DISTRICT, PIN - 686509`** ## **`SR PP T V NEEMA`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO.2876/2024 2 ``` ## **`ORDER`** 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 first accused in Crime No.144 of 2024 of Erumeli Police Station, Kottayam, registered against the accused (two in number), for allegedly committing the offences punishable under Sections 341, 294(b), 506, 323, 324 and 308 r/w Section 34 of the Indian Penal Code, 1860, (‘IPC’, for short). Subsequently, Section 326 of the IPC was incorporated. 3. The crux of the prosecution case is that: on 21.02.2024 at around 18.05 hours, the accused, in furtherance of their common intention and out of a previous animosity towards the defacto complainant, wrongfully restrained the defacto complainant and the first accused fisted him on his face and, ``` BAIL APPL. NO.2876/2024 3 ``` thereafter, he attempted to assault the defacto complaint with a billhook, which he warded off, but sustained injuries on his left elbow, but he fell down on the ground. Then, the first accused kicked him on his back and he sustained a grievous injury. The second accused assisted the first accused to inflict the above injuries. Thus, the accused have committed the above offences. 4. Heard; Sri.Manu Ramachandran, learned counsel for the petitioner and Smt.Neema T.V., learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure A1 – First Information Report would substantiate that the offences under Sections 326 and 308 of the IPC will not be attracted. The said offences have been incorporated by the Investigating Officer just to ``` BAIL APPL. NO.2876/2024 4 ``` deny bail to the petitioner. The real fact is that the defacto complainant warded off the attack with the billhook. Therefore, the offence under Section 308 will not be attracted. Moreover, the injury allegedly suffered by the defacto complainant on his back because the petitioner had kicked him can never attract the offence under Section 326 of the IPC. The 2[nd] accused has already been granted an order of pre-arrest bail by the Court of Session, Kottayam as per Annexure A2 order. The learned Court below has erroneously rejected the petitioner’s application. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Senior Public Prosecutor opposed the application. She submitted that there are specific overt acts attributed against the petitioner so as to attract the offences under Sections 326 and 308 of the IPC. She made available the accident register cum wound certificate as well as the ``` BAIL APPL. NO.2876/2024 5 ``` treatment certificate of the defacto complainant issued by the Government Medical College Hospital, Kottayam to substantiate the fact that the defacto complaint suffered a fracture of his L3 vertebrae and that he was treated as an inpatient from 22.02.2024 to 26.02.2024. She submitted that the petitioner had assaulted the defacto complainant with billhook and then kicked his back when he fell on the ground. The investigation is only at its nascent stage and custodial interrogation of the petitioner is necessary. Moreover, the 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. On an evaluation of the materials on record it is seen be deduced that there are specific allegation attributed against the petitioner, that he assaulted the defacto complainant with the billhook and he suffered an injury on his hand and, thereafter, he kicked him on his back and suffered a fracture of his ## **`BAIL APPL. NO.2876/2024 6`** vertebrae. The accident register cum wound certificate and the treatment records of the defacto complainant _prima facie_ corroborates the prosecution case. ## 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 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; ## **`BAIL APPL. NO.2876/2024 7`** (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 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 selfimposed 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 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 ## **`BAIL APPL. NO.2876/2024 8`** 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. 10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, gravity and seriousness of the offence alleged against the petitioner, especially the specific overt acts alleged against the petitioner which _prima facie_ stand corroborated through the accident register cum wound certificate as well as the treatment certificate of the defacto complainant, and the findings of the learned Sessions Judge in Annexure A2 order, I am not satisfied that the petitioner has made out any exceptional ground 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 pre-arrest bail. Consequently, the bail application is dismissed. ``` BAIL APPL. NO.2876/2024 9 ``` 11. 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, 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 ``` ## **`MC`** ## **`BAIL APPL. NO.2876/2024 10`** ## **`APPENDIX OF BAIL APPL. 2876/2024`** ## **`PETITIONER ANNEXURES`** ``` Annexure A1THE TRUE COPY OF THE FIR IN CRIME NO.144/2024 OF ERUMELI POLICE STATION, PATHANAMTHITTA DISTRICT Annexure A2THE TRUE COPY OF THE ORDER DATED 21.03.2024 IN CRL.MP NO.595/2024 BY THE SESSIONS COURT, KOTTAYAM ```