Niyas B and Looluwah v. State of Kerala

1 BA No.1097 of 2024 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 BAIL APPL. NO. 1097 OF 2024 CRIME NO.118/2024 OF Venjaramoodu Police Station, Thiruvananthapuram ``` ## **`PETITIONER/S:`** ``` 1NIYAS B , AGED 34 YEARS S/O BADARUDHEEN, NIYAS MANZIL VATTIYOORKAVU,THIRUVANANTHAPURAM, PIN - 695013 2LOOLUWAH, AGED 32 YEARS D/O HUSSAIN E.K,PADINJATTILVILLA,MENAMKOTTUKONAM MANIKKALMANIKKAL, KUTHIRAMKULAM P.O,VEMBAYAM, THIRUVANATHAPURAM, PIN - 695615 BY ADVS. NIKITA NAIR C.S. T.G.SUNIL (PERUMBAVOOR) M.A.KASIM SYAM K.P. MUHAMMED SHIYAS P.C ALIF K.S. ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 SRI.C.S HRITHWIK, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1097 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.1097 of 2024** ## **-----------------------------------** ## **Dated this the 16[th] day of February, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 3 in Crime No.118/2024 of the Venjaramoodu Police Station, Thiruvananthapuram, registered against the accused, for allegedly committing the offence punishable under Section 353 of the Indian Penal Code. 3. The crux of the prosecution case is that:on 22.1.2024 at around 4.30 p.m, while the defacto complainant, who is the RDO and Sub Divisional Magistrate along with his staff went to enquire about a complaint, the third accused uttered obscene 3 BA No.1097 of 2024 words against them, threatened and obstructed them from performing their official duties. The first accused then threatened the defacto complainant to chop his leg and attempted to beat him on his face. The accused restrained the defacto complainant from discharging his official duties. Thus, the accused have committed the above offences. 4. Heard Smt.Nikita Nair C.S, the learned counsel appearing for the petitioners and Sri.C.S Hrithwik, the learned Public Prosecutor. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. Even if the allegations in the FIR are taken on its face value, they do not attract the offence under Sec.353 of the IPC. The petitioners have been falsely implicated in the crime. The petitioners are willing to abide by any stringent condition that may be imposed by this 4 BA No.1097 of 2024 Court and co-operate with the investigation. Hence, the petitioners may be released on bail. 6. The learned Public Prosecutor seriously opposed the bail application. He contended that the first petitioner/first accused had prevented the defacto complainant and his office staff from discharging their official duties. The first accused attempted to assault the defacto complainant and he has criminal antecedents. He is involved in thirteen other cases for allegedly committing offences under the Indian Penal Code. The first petitioner’s custodial interrogation is necessary and recovery is to be effected. However, he conceded to the fact that there is no specific overt act alleged against the second petitioner/third accused. 7. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: 5 BA No.1097 of 2024 **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; (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 6 BA No.1097 of 2024 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. ## 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 7 BA No.1097 of 2024 has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 9. On a consideration of the materials placed on record, it is seen that the accused 1 to 3 had moved the Court of Session, Thiruvananthapuram for an order of pre-arrest bail by filing Crl.M.C No.258/2024. The Court of Session, by Annexure IV order, allowed the bail application filed by the second accused and dismissed the bail application filed by the petitioners principally on the ground that the investigation in the case is at its nascent stage and there are specific allegations levelled against the petitioners. 10. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and on comprehending the nature, seriousness and gravity of the offences alleged against the petitioners and the specific overt act is only alleged against the first petitioner/first accused , I am of the definite view that the first petitioner/first 8 BA No.1097 of 2024 accused has not made any exceptional ground to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I am not inclined to pass an order of prearrest bail in favour of the first petitioner/first accused. At the same time, taking into account that the second petitioner is a lady who is said to be a feeding mother, that there is no specific overt act alleged against her, that no recovery is to be effected and that her custodial interrogation is not necessary, I am inclined to pass an order of pre-arrest bail in favour of the second petitioner. In the result, (i) The application filed by the first petitioner is dismissed. ii) The application filed by the second petitioner is allowed by directing her to surrender before the Investigating Officer within ten days from today. 9 BA No.1097 of 2024 iii) In the event of the second petitioner's arrest, the Investigating Officer shall produce her before the jurisdictional court on the date of surrender itself. iv) On such production, the jurisdictional court shall release the second petitioner on bail on her executing a bond for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; v) The second petitioner shall co-operate with the investigation and make herself available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; vi). The second petitioner shall not intimidate witnesses or interfere with the investigation in any manner; vii). The second petitioner shall not get involved in any other offence while on bail. 10 BA No.1097 of 2024 viii). In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. ix). Applications for deletion/modification of the bail conditions shall also be filed before the court below. sd/- sks/16.2.2024 **C.S.DIAS, JUDGE**