Nixon M D and Sanup v State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 796 OF 2024 ``` ``` CRIME NO.1483/2023 OF North Paravur Police Station, Ernakulam PETITIONER/S: ``` ``` 1NIXON M D AGED 29 YEARS S/O LATE DEVASSY MELEDETH HOUSE, THATTUKADAVU NORTH PARAVOOR-, PIN - 683513 2SANUP AGED 35 YEARS S/O LATE VIJAYAN KAKKATTUPARAMBIL HOUSE JEW STREET, MARKET ROAD NORTH PARAVUR-, PIN - 683513 BY ADVS. M.B.SOORI BALAMURALI K.P. ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` SMT.NEEMA T.V SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.796 of 2024 ## **C.S.DIAS,J** ## **====================== Bail Application No.796 of 2024** **-----------------------------------** ## **Dated this the 9[th] day of February, 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.1483/2023 of the North Paravur Police Station, Ernakulam, registered against the accused, for allegedly committing the offences punishable under Sections 341, 324, 307, 294(b), 506 read with Sec.34 of the Indian Penal Code, 1860, _(‘IPC’, for short)._ 3. The prosecution allegation, in brief, is that: On 19.12.2023 at about 9.p.m, the accused allegedly attacked the 3 Bail Application No.796 of 2024 defacto complainant and his friends with a knife and beer bottle and caused injuries to them. The accused threatened to take away their lives. Thus, the accused have committed the above offences. 4. Heard; Sri.M.B Soori, the learned counsel appearing for the petitioners and Smt.Neema T.V, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The offence under Sec.307 has been deliberately added to deny bail to the petitioners. The petitioners are law abiding citizens and have no criminal antecedents. The petitioners are willing to co-operate with the investigation. The investigation in the case is practically complete and recovery has been effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She made available the accident register cum- 4 Bail Application No.796 of 2024 wound certificate of the defacto complainant and the two other injured dated 19.12.2023 issued by the Sree Narayana Institute of Medical Sciences, Chalakkara, to substantiate the multiple injuries and incised wounds sustained by the three injured. She submitted that there are specific overt acts alleged against the petitioners. The custodial interrogation of the petitioners is necessary and recovery is to be effected. If the petitioners are let off on bail, it would hamper with the investigation. Moreover, the petitioners may intimidate the witnesses and tamper with the evidence. Hence, the application may be dismissed. 7. 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 5 Bail Application No.796 of 2024 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; (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; 6 Bail Application No.796 of 2024 (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. ## 8. 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. 7 Bail Application No.796 of 2024 9. On a consideration of the facts, the materials placed on record and rival submissions made across the Bar, especially after appreciating the accident register cum wound certificate of the three injured and finding that all of them suffered several injuries on different parts of their body, and on comprehending the gravity, nature and seriousness of the offences alleged against the petitioners, that the custodial interrogation of the petitioners is necessary and recovery is to be effected, I am of the definite view that the petitioners have not made out any exceptional ground to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I am not inclidend to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 10. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if 8 Bail Application No.796 of 2024 the petitioners move an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. sd/- Sks/9.2.2024 **C.S.DIAS,JUDGE**