R. Rajesh vs State of Kerala

# **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. 1051 OF 2024** **CRIME NO.84/2024 OF Poonthura Police Station, Thiruvananthapuram AGAINST THE ORDER/JUDGMENT CRMC 203/2024 OF DISTRICT COURT &** **SESSIONS COURT, THIRUVANANTHAPURAM** ## **PETITIONER/S:** R. RAJESH AGED 52 YEARS S/O RAVI, T.C 68/2444, RITHY BHAVAN, VVLRS 97, KAMALESWARAM, MANACAUD. P.O., THIRUVANANTHAPURAM, PIN - 695009 BY ADVS. SASTHAMANGALAM S. AJITHKUMAR V.S.THOSHIN SATHEESH MOHANAN SREEJITH S. NAIR SUNIL.V. VISHNU V.H. MAHIMA COLIN ANTONY DCRUZ SEKHAR G. THAMPI ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031 ## **OTHER PRESENT:** PP SMT SHINY V O THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 1051 OF 2024 2 ## **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 petitioner is the 1[st] accused in Crime No.84/2024 of the Poonthura Police Station, Thiruvananthapuram, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 452, 294(b), 323, 324, 326, 506 (ii), 427 and 308 r/w Sec.34 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The gist of the prosecution case is that: on 21.01.2024 at around 00.15 hours, the accused trespassed into house of the defacto complainant with dangerous weapons and attacked the defacto complainant, his brother and father and attempted to murder them. The 1[st] accused pushed the defacto complainant's father and brother and the 2[nd] accused using an iron rod attempted to hit on the head of the BAIL APPL. NO. 1051 OF 2024 3 defacto complainant's brother. But since the said person warded off the attack, he got hit on the different parts of the body and he suffered a ligament fracture. When the defacto complainant attempted to intervene, the 2[nd] accused hit him also with an iron pipe on his head and caused a grievous injury. Thereafter, the 4[th] accused pushed the defacto complainant down and the 3[rd] accused using a knuckleduster fisted him on his head. Again, when the defacto complainant's father attempted to intervene, the 3[rd] accused pushed him and the accused 1 and 4 fisted him on his back and the 2[nd] accused stamped him on his chest. The 1[st] accused also beat the defacto complainant with an iron pipe on his right hand and he sustained a grievous injury. Thus, the accused have committed the above offences. 4. Heard; Sri. Sasthamangalam S.Ajithkumar, the learned counsel appearing for the petitioner and Smt.Shiny V.O., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations BAIL APPL. NO. 1051 OF 2024 4 leveled against him. The crime has been registered as an aftermath of a civil litigation between the parties. It was during the settlement talks that the present altercation happened. There is no specific overt act alleged against the petitioner. The petitioner has no criminal antecedents. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. The petitioner is willing to co-operate with the investigation and also abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that there is a specific overt act alleged against the petitioner. The petitioner had used an iron pipe and attempted to hit the defacto complainant's brother. He has also caused injuries to the other injured in the incident. She handed over the treatment certificates of the defacto complainant and the other injured to substantiate the injuries sustained by them. One of the injured named Soorya had suffered a 5[th] BAIL APPL. NO. 1051 OF 2024 5 metacarpal head fracture. She contended that the petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is let off on bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that the petitioner and the other accused had physically assaulted the defacto complainant and his family members and they sustained grievous injuries. If the defacto complainant had not warded off the attack, he would have lost his life. Thus, the accused have committed the predicate offences under Sections 326 and 308 of the IPC. ## 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 BAIL APPL. NO. 1051 OF 2024 6 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 BAIL APPL. NO. 1051 OF 2024 7 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. ## 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 BAIL APPL. NO. 1051 OF 2024 8 ## the crime and his liberty is being misused. 10. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, particularly after going through the treatment certificate of the and on injured comprehending the nature, seriousness and gravity of the offences alleged against the accused, that the investigation in the case is only at the nascent stage, that the custodial interrogation of the petitioner is necessary and recovery is to be effected, I am of the definite view that the petitioner has not made out any exceptional grounds 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 pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the 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 petitioner moves an BAIL APPL. NO. 1051 OF 2024 **==> picture [7 x 9] intentionally omitted <==** 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 petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** Rkc/16.02.24 BAIL APPL. NO. 1051 OF 2024 10 ## **APPENDIX OF BAIL APPL. 1051/2024** PETITIONER ANNEXURES Annexure 1 THE TRUE COPY OF THE FIR IN CR.NO. 84/2024 OF POONTHURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT Annexure 2 . THE TRUE COPY OF THE O.S 101/2022 PENDING BEFORE THE HON'BLE SUB COURT, THIRUVANANTHAPURAM Annexure 3 THE CERTIFIED COPY OF THE ORDER IN CRL. M.C 2023/2023 OF THE SESSIONS JUDGE, THIRUVANANTHAPURAM