Rahul @ Kittu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 BAIL APPL. NO. 664 OF 2024 ``` ``` CRIME NO.2296/2023 OF PARASSALA POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER/6TH ACCUSED:`** ``` RAHUL @KITTU AGED 30 YEARS S/O BHASKARAN, VATTOMTHALAKKAL VEEDU, KUZHAKOTTUKONAM, PARASUVAIKKAL, PARASSALA, THIRUVANANTHAPURAM., PIN - 695508 BY ADVS. VISHNU BHUVANENDRAN B.ANUSREE MIRAL K.JOY ABHILASH C.V. VARUN JACOB ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SR PUBLIC PROSECUTOR SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.664 of 2024 ## -:2:- ## **O R D E R** Dated this the 5[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 petitioner is the 6[th] accused in Crime No.2296/2023 of the Parassala Police Station, Thiruvananthapuram registered against the accused (eight in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 149, 341, 294(b), 323, 324 and 307 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 25.12.2023 at about 11.30 p.m. the accused in prosecution of their common intention had formed an B.A.No.664 of 2024 -:3:- unlawful assembly near Parasuvaikkal Church, and thereafter verbally abused and physically assaulted the de facto complainant and his friends and caused grievous injuries to them. The first accused stabbed the de facto complainant with a knife. Thus, the accused have committed the above offences. 4. Heard; Sri. Vishnu Bhuvanendran, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. Even going by the allegations in Annexure 1 FIR, there is no specific overt act alleged against the petitioner. The petitioner does not have any criminal antecedents. At any rate, the B.A.No.664 of 2024 ## -:4:- petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She contended that there is a specific allegation against the petitioner that he was the person who caught hold of the friend of the de facto complainant and facilitated the other accused to assault the person. The petitioner’s custodial interrogation is necessary. She also made available the Accident Register-cum Wound Certificate dated 26.12.2023 of the three injured. Two of the injured Akhil and Manu had suffered stab injuries, and the other injured sustained a lacerated wound. The recovery is to be effected. If the petitioner’s granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. ## B.A.No.664 of 2024 ## -:5:- 7. The prosecution allegation against the accused is that, the accused in prosecution of their common intention formed an unlawful assembly and assaulted the de facto complainant and his friends. The Accident Register -cum -Wound Certificate demonstrates that two of the injured had suffered stab injuries and the third one suffered a lacerated wound on the side of his chest. Therefore, it is too premature for this Court to ascertain the complicity of the petitioner in the crime. The investigation in the case is in progress. 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 ## B.A.No.664 of 2024 ## -:6:- 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 ## B.A.No.664 of 2024 ## -:7:- 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 ## B.A.No.664 of 2024 ## -:8:- 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 the crime and his liberty is being misused. 10. After bestowing my anxious consideration to B.A.No.664 of 2024 ## -:9:- the facts, the materials placed on record, the rival submissions made across the Bar, and particularly after going through the Accident Register-cum-Wound Certificate, which reveal that two of the injured suffered stab injuries and one of them sustained an injury on his chest, that the investigation is only at its nascent stage, that the recovery is to be effected and the custodial interrogation of the petitioner is necessary, I am of the definite view that the petitioner has not made out any exceptional ground to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I am of the view 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, B.A.No.664 of 2024 ## -:10:- thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves 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 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** rmm/7/2/2024