Pilee @ Shynesh P; Ben Sangeeth Y.M; Akhil P.T v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 BAIL APPL. NO. 582 OF 2024 ``` ``` CRIME NO.803/2023 OF KUTTIYADI POLICE STATION, KOZHIKODE AGAINST THE ORDER/JUDGMENT CRMC 2241/2023 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE ``` ## **`PETITIONERS:`** ``` 1PILEE @ SHYNESH P AGED 36 YEARS S/O NANU, PEELIYAT HOUSE, VALAYANOOR, KUTTIADI P.O, VATAKARA TALUK, KOZHIKODE, PIN - 673101 2BEN SANGEETH Y.M AGED 34 YEARS S/O MANOHARAN, ELACHU KANDY HOUSE KUTTIADI P.O , VATAKARA TALUK, KOZHIKODE, PIN - 673101 3AKHIL P.T AGED 29 YEARS S/O CHANDRAN, POOLATHRA HOUSE, KUTTIADI P.O VATAKARA TALUK KOZHIKODE, PIN - 673101 BY ADVS. K.REEHA KHADER ANJITHA SUDHAKARAN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR. PUBLIC PROSECUTOR SMT. SEETHA S. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.582 of 2024 ## -:2:- ## **O R D E R** Dated this the 8[th] day of February, 2024 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 4, 3 and 2 respectively in Crime No.803/2023 of the Kuttiadi Police Station, Kozhikode registered against the accused (four in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324, 506, 427 r/w Section 149 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 9.12.2023, at about 23 hours, the accused wrongly restrained the de facto complainant and his friends and ## B.A.No.582 of 2024 -:3:- they attacked him with a key and stones and the de facto complainant sustained grievous injuries, including a fracture of his nasal bone. Thus, the accused have committed the above offences. 4. Heard; Smt. Reeha Khader K., the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that, it was the de facto complainant who actually assaulted the petitioners. The petitioners have lodged a complaint before the police, but no action has been taken. There is no specific overt act alleged against the petitioners 2 and 3. It was the first petitioner/4th accused, who had allegedly hit the de facto complainant with a stone on his nose, which in turn caused the nasal bone fracture. However, the ## B.A.No.582 of 2024 ## -:4:- second petitioner is a person with disability. The case is filed as a counter blast to the complaint filed by the petitioners. The petitioners are totally innocent of the accusations levelled against them. The petitioners are ready to co-operate with the Investigating Officer and abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She contended that there is an overt act alleged against the first petitioner. The petitioners 2 and 3 had caught hold of the de facto complainant and facilitated the first petitioner to hit him with a stone. She made available the Accident Register-cum Wound Certificate of the injured along with the treatment certificate dated 10.12.2023 issued by the Government Taluk Hospital, Kozhikode, to substantiate that the de facto complainant had suffered a nasal bone fracture. ## B.A.No.582 of 2024 ## -:5:- She contended that the custodial interrogation of the first petitioner is necessary and recovery is to be effected. 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. ## B.A.No.582 of 2024 ## -:6:- **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 ## B.A.No.582 of 2024 ## -:7:- 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. ## 8. In **Jai Prakash Singh v. State of Bihar and** **another,** [(2012) 4 SCC 379] the Hon’ble Supreme ## B.A.No.582 of 2024 ## -:8:- 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. 9. On an anxious consideration of the facts, the materials placed on record, particularly after going through the Accident Register-cum-Wound Certificate and the treatment certificate of the injured, and on comprehending the fact that it was the first petitioner/4th accused who allegedly inflicted injury on the de facto complainant, I am of the definite view that the petitioners 2and 3/ accused 3 and 2 to entitled to ## B.A.No.582 of 2024 ## -:9:- an order of pre-arrest bail, since their custodial interrogation is not necessary and no recovery is to be effected from them. However, the application filed by the first petitioner is liable to be dismissed. 10. In the result: (a) The application filed by the first petitioner/4th accused is dismissed. (b) The application filed by the petitioners 2 and 3/accused 3 and 2 is allowed subject to the following conditions:- i) The petitioner 2 and 3 are directed to surrender before the Investigating Officer within ten days from today. ii) In the event of the petitioners 2 and 3 arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the petitioners 2 and 3 on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand B.A.No.582 of 2024 ## -:10:- only), each with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; iv) The petitioners 2 and 3 shall co-operate with the investigation and make themselves available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; v). The petitioners 2 and 3 shall not intimidate witnesses or interfere with the investigation in any manner; vi). The petitioners 2and 3 shall not get involved in any other offence while on bail. vii). 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. ## B.A.No.582 of 2024 -:11:- viii). Applications for deletion/modification of the bail conditions shall also be filed before the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners 2 and 3 even while the petitioners 2 and 3 are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State(NCT of Delhi) and Anr.** [2020 (1) KHC 663]. (x) Nonetheless, I direct that, if the first 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 first petitioner moves an application for bail, the B.A.No.582 of 2024 ## -:12:- jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. If the first petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the first petitioner as if no order has been passed in this case. SD/- **C.S.DIAS,JUDGE** rmm/9/2/2024