Nithu M v. State of Kerala and The Station House Officer, Vagamon 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. 1703 OF 2024** **CRIME NO.45/2024 OF VAGAMON POLICE STATION, Idukki** ## **PETITIONER/S:** **NITHU.M AGED 22 YEARS S/O MATHU, PUTHENVEEDU HOUSE, PULLIKANAM KARA, PULLIKANAM P.O, ELAPPALLY VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT,, PIN - 685503** **BY ADVS. DINESH THANKAPPAN R.REJI (ATTINGAL)** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER, VAGAMON POLICE STATION, VAGAMON P.O, IDUKKI DISTRICT,, PIN - 685503** ## **OTHER PRESENT:** ## **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:** BAIL APPL. NO. 1703 OF 2024 2 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the 3[rd] accused in Crime No.45/2024 of the Vagamon Police Station, Idukki registered against the accused (eight in number) for allegedly committing the offences punishable under Sections 324 and 307 r/w Section 34 of the Indian Penal Code ('IPC', in short). 3. The essence of the prosecution case is that: on 20.01.2024 at around 21.30 hours, the accused 2 to 4 caught hold of the injured named Sujith and the 1[st] accused stabbed him on his shoulder with a sharp edged weapon injuring his lungs. Thus, the accused have committed the above offences. 4. Heard; Sri.Dinesh Thankappan, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. A reading of Annexure -1 BAIL APPL. NO. 1703 OF 2024 3 FIR would substantiate that the offence under Section 307 will not be attracted as against the petitioner. The said Section has been incorporated only for the purpose of denying bail to the petitioner. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner along with accused 2 and 3 had caught hold of the injured and facilitated the 1[st] accused to stab the injured. She made available the accident register cum wound certificate issued by the K.M.Mani Smaraka Govt. General Hospital, Pala dated 20.01.2024 to substantiate the nature of grievous 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 hamper with the investigation. Hence, the bail application may be dismissed. 7. The prosecution allegation against the petitioner is BAIL APPL. NO. 1703 OF 2024 4 that he along with the accused 2 and 3 had caught hold of the injured which enabled the 1[st] accused to stab the defacto complainant/injured. The accident register cum wound certificate would substantiate that the injured suffered a 3 cm vertical incised wound with gaping near (medial) to right scapula. It is also seen that the injured had suffered diffuse bulging of the right hemithorax. The injured had to undergo a surgery in the hospital. 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 BAIL APPL. NO. 1703 OF 2024 5 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 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 BAIL APPL. NO. 1703 OF 2024 6 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 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. 10. The materials on record reveal that the petitioner had moved the Court of Session, Thodupuzha by filing Crl.M.C.No.98/2024. The learned Sessions Judge, by Annexure 3 order taking note of the specific overt act alleged against the petitioner, that the investigation was in progress and the petitioner's custodial interrogation was BAIL APPL. NO. 1703 OF 2024 7 necessary, dismissed the application. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, particularly the accident register cum wound certificate, the specific overt act alleged against the petitioner, the findings of the learned Sessions Judge in Annexure 3 order and further the petitioner's custodial interrogation is necessary and recovery is to be effected, I am of the definite view that the petitioner is not entitled for an order of pre-arrest bail. Hence, I am not inclined to entertain the bail application. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS JUDGE** rkc/11.03.24 BAIL APPL. NO. 1703 OF 2024 8 ## **APPENDIX OF BAIL APPL. 1703/2024** **PETITIONER ANNEXURES** **Annexure 1 THE TRUE COPY OF THE F.I.R IN CRIME NO. 45/2024 OF VAGAMON POLICE STATION IN IDUKKI DISTRICT Annexure 2 THE TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER ISSUED BY THE ADI INSTITUTE OF QUALITY ENGINEERS, VALANJAMBALAM, COCHIN Annexure 3 THE CERTIFIED COPY OF THE ORDER OF THE HON'BLE SESSIONS COURT THODUPUZHA DATED 22/02/2024 IN CRL.M.C, NO.98/2024**