Rahul v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, ``` ``` 1945 ``` ``` BAIL APPL. NO. 1417 OF 2024 ``` ``` CRIME NO.124/2024 OF ALATHUR POLICE STATION, PALAKKAD ``` ## **`PETITIONER/6TH ACCUSED:`** ``` RAHUL AGED 26 YEARS S/O. CHANDRASEKHARAN, NEAR L.P. SCHOOL, CHEMMANAMKAD, KANJIKKODE-, PIN - 678621 ``` ``` BY ADVS. AQIB SOHAIL P.S. RIZWANA A.A. ``` ## **`RESPONDENT/COMPLAINANTS:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1417 of 2024 -:2:- ## **O R D E R** Dated this the 29[th] day of February, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the sixth accused in Crime No.124/2024 of the Alathur Police Station, Palakkad, registered against the accused (seven in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 323 and 307 r/w Section 149 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 28.01.2024, the accused 2 and 7 and one Surendaran had a confrontation with the waiters of Chithrapuri Bar, at Kallepully, due to the delay in serving the food to them. Subsequently, the second accused informed the same to the first accused. The first accused reached the B.A.No.1417 of 2024 ## -:3:- Bar with an air gun, along with the accused 3 to 5 and the 6[th] accused. In a vehicle bearing No.KL-09-A-Q-4222, belonging to the first accused. Then, at around 22.45 hours on the same day, the accused 1 to 7 formed an unlawful assembly, and the first accused opened fire with his air gun on the first informant. The accused had also wrongfully restrained the employees of the bar, along with the first informant. They assaulted the first informant and employees with their hands. The first informant sustained a serious injury to his chest, and he had to undergo a surgery to remove pellet. Thus, the accused have committed the above offences. 4. Heard; Sri. Aqib Sohil P.S, the learned counsel appearing for the petitioner and Smt. Neema. T.V, 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 B.A.No.1417 of 2024 -:4:- levelled against him. There is no specific overt act alleged against the petitioner. The petitioner was not even named in Annexure A1 FIR. A reading of Annexure A1 FIR would substantiate that the offence under Section 307 will not be attracted. The petitioner’s custodial interrogation is not necessary, there is no recovery to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that the accused 1 to 7, in prosecution of their common intention, had assembled at the place of occurrence, and the first accused had opened fire on the first informant, and the other accused facilitated him to do the said act. Moreover, the accused have also caused injuries to the employees of the Bar. She further submitted that the petitioner’s custodial interrogation is necessary and recovery is to be effected. She made available the discharge summary of the injured/first informant dated 29.01.2024 to substantiate B.A.No.1417 of 2024 ## -:5:- that the injured had suffered a punctured wound on his chest and had to undergo surgery to remove the pellet. She submitted that if the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that the accused 1 to 7, in prosecution of their common intention, had assembled at the place of occurrence, and the accused 2 to 7 had facilitated the first accused to fire at the first informant/injured. Thereafter, the accused had assaulted the employees of the Bar. 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.1417 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 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 B.A.No.1417 of 2024 -:7:- 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. B.A.No.1417 of 2024 -:8:- 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 a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 10. On a consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and on comprehending the seriousness, gravity, and nature of the accusations levelled against the petitioner, that the investigation in the case is in the preliminary stage, that the petitioner’s custodial interrogation is necessary, and that the recovery is to be effected, I am B.A.No.1417 of 2024 -:9:- convinced that the petitioner has not made out exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/ 29.02.2024