:null

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945 BAIL APPL. NO. 244 OF 2024** **CRIME NO.584/2023 OF PANAMARAM POLICE STATION, WAYANAD PETITIONERS/ACCUSED:** - **1 ANOOP AGED 25 YEARS S/O. P.K. SATHYAN, VALIYAPARAMBIL HOUSE, PANAMARAM P.O., PANAMARAM VILLAGE, WAYAND DISTRICT., PIN - 670721** - **2 IRSHAD, AGED 32 YEARS S/O. YUSAF, KULATHUMPADI HOUSE, PARAKKUNI, CHERUKATTOOR P.O, , WAYAAND DISTRICT,, PIN - 670712** - **3 ASEES AGED 32 YEARS S/O. MUHAMMED CHOMBALAN, THARUVANA P.O., PORNNNANNOOR, WAYAND DISTRICT., PIN - 670722** - **4 AKSHAY AGED 25 YEARS S/O. MOHANAN, PULLATTUKUZHI, PANAMARAM, WAYAND DISTRICT., PIN - 670721** - **5 SANAL @ SANILKUMAR, AGED 40 YEARS S/O. THULASEEDHARAN, KADUPPIL, PANAMARAM, WAYAND DISTRICT., PIN - 670721** - **6 JIBIN @ DIPIN AGED 28 YEARS S/O. DEVASAN M..R., DIPIN NIVAS, ERANALLORE, PANAMARAM, WAYAND DISTRICT., PIN - 670721** - **7 SIRAJ AGED 23 YEARS** **BAIL APPL. NO. 244 OF 2024** 2 **S/O. MULLAKKOYATHANGAL, THOTTUMUGHAM, PANAMARAM, WAYAND DISTRICT., PIN - 670721** **BY ADVS. M.B.SHYNI U.JAYAKRISHNAN RAJESH KUMAR R. V.R.ANILKUMAR SARAFUDHEEN T.** ## **RESPONDENTS:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 244 OF 2024** 3 ## **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 prearrest bail. 2. The petitioners are accused Nos.1 to 7 in Crime No.584/2023 of the Panamaram Police Station, Wayanad District registered against the accused for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 324, 307 r/w 149 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The gist of the prosecution case is that: around 01.00 hours on 16/12/2023 , the accused in prosecution of their common intention to commit murder of the defacto complainant, armed with deadly weapons, formed unlawful assembly and wrongfully restrained the defacto complainant, attacked him with iron rod and sticks. When defacto complainant attempted to escape , they chased him and attacked him and caused grievous hurt to him. Thus, the accused have committed the above offences. 4. Heard; Smt. M.B.Shyni, the learned counsel appearing for **BAIL APPL. NO. 244 OF 2024** **==> picture [7 x 9] intentionally omitted <==** the petitioners and Smt.Seetha S, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. Annexure-2 FIR which was registered at the instance of the petitioners against the de facto complainant. Annexure-2 would show that the offence of Section 308 of IPC has been incorporated against the de facto complainant on the very same day. Even going by Annexure-1 FIR, the overt act is only alleged against the 1[st] petitioner. In the investigation, the investigating officer has removed A4 from the array of the accused. The petitioners custodial interrogation is not necessary. Hence, an order of pre-arrest bail may be passed. 6. The learned Public Prosecutor opposed the application. She made available the case diary as well as the accident register cum wound certificate. She contended that 1[st] accused hit the de facto complainant with iron rod and other accused hit him with wooden stick. The defacto complainant sustained serious injuries and had to put four stitches on his head. The petitioners' custodial interrogation is necessary and recovery is to be effected. The accused Nos.1, 5 and 6 **BAIL APPL. NO. 244 OF 2024** 5 have criminal antecedents. There are 5 cases registered against the 1[st] accused , 4 cases registered against the 5[th] accused , 1 case registered against the 6[th] accused by the very same police station for committing similar offences. If the accused are let off on bail, there is every likelihood of them repeating the very same offences and causing breach of peace in the locality. 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 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; **BAIL APPL. NO. 244 OF 2024** 6 (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 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. **BAIL APPL. NO. 244 OF 2024** 7 8. Likewise, in **Gurbaksh Singh Sibbia v. State of Punjab** , (1980) 2 SCC 565 ] the Hon’ble Supreme Court has held as follows: 21. The High Court says in its fourth proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a “special case” for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not “unguided or uncanalised”, the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special case” for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a “special case”. We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 9. On an anxious consideration of the materials placed on record, particularly taking note of the nature, gravity, and seriousness of the offence alleged against the petitioners, antecedents of the **BAIL APPL. NO. 244 OF 2024** 8 petitioners 1, 5 and 6, that custodial interrogation of the petitioners are necessary and that the recovery is to be effected, I am of the definite view that the petitioners are not entitled 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 prearrest 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 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/- **C.S.DIAS, JUDGE** AS