Rajeesh K.M. and others v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, ``` ``` 1945 ``` ``` BAIL APPL. NO. 869 OF 2024 ``` ``` CRIME NO.49/2024 OF PUDUKKAD POLICE STATION, THRISSUR ``` ## **`PETITIONERS/ACCUSED 1 TO 4:`** ``` 1RAJEESH K.M, AGED 39 YEARS S/O MANOHARAN, KAMBUZHA HOUSEM MADAVAKKARA, PARAPPUKKARA, PUDUKKAD, MUKUNDAPURAM TALUK, THRISSUR., PIN - 680301 ``` ``` 2SANJAY.K, AGED 26 YEARS S/O KRISHNANKUTTY , THITTINPURAM HOUSE, MADAVAKKARA, CHITTISSERY.P.O., NENMANIKARA, THRISSUR, PIN - 680301 ``` ``` 3SOORAJ, AGED 25 YEARS S/O SURENDRAN, MADAVAKARA MALATH, CHITTISSERY.P.O., NENMANIKARA, THRISSUR, PIN - 680301 ``` ``` 4FABIN.T.R, AGED 36 YEARS S/O T.L.RAPPAI, THERMADOM HOUSE, P.O., CHITTISSERY, KUNNISSERY, THRISSUR, PIN - 680301 ``` ## **`BY ADV RAJESH CHAKYAT`** ## **`RESPONDENTS/STATE/COMPLAINANT:`** ``` 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` B.A.No.869 of 2024 -:2:- ``` 2 THE STATION HOUSE OFFICER, PUDUKKAD POLICE STATION, THRISSUR DISTRICT, PIN - 680301 ``` ``` BY SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.869 of 2024 ## -:3:- ## **O R D E R** Dated this the 28[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 petitioners are the accused 1 to 4 in Crime No.49/2024 of the Pudukkad Police Station, Thrissur, registered against them for allegedly committing the offences punishable under Sections 143, 147, 148, 452, 326 and 323 r/w Section 149 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 15.01.2024, the accused, in prosecution of their further intention, had attacked the de facto complainant. The first accused had used a knuckleduster and hit on the face of the de facto complainant, who sustained grevious injuries. The other accused also attacked him. Thus, the accused have committed the above offences. B.A.No.869 of 2024 -:4:- 4. Heard; Sri. Rajesh Chakyat. C, the learned counsel appearing for the petitioners and Sri. C.S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. Even a reading of the First Information Report would reveal that the offences alleged against the petitioners will not be attacted. Section 326 has been deliberately incorporated to deny bail to the petitioners. In fact, the petitioners 2 to 4 have also sustained grievous injuries in the incident. Although they submitted Annexure A3 complaint to the Commissioner of Police, no action has been taken on the same. At any rate, the petitioners’ custodial interrogation no is not necessary, and recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed B.A.No.869 of 2024 ## -:5:- the application. He contended that the accused 1 to 4 have, in furtherance of their common intention, assaulted the defacto complainant, and he sustained a nasal bone fracture. He made available the discharge certificate of the injured, dated 25.01.2024, issued by Elite Mission Hospital, Thrissur, to substantiate the nature of the injuries sustained by the injured. He further submitted that the petitioners' custodial interrogation is necessary and recovery is to be effected. The investigation in the case is only at the preliminary stage. If the petitioners are granted an order of prearrest bail, it would hamper with the investigation. 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 B.A.No.869 of 2024 ## -:6:- 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; (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; B.A.No.869 of 2024 ## -:7:- (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 B.A.No.869 of 2024 ## -:8:- 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 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. 9. On a consideration of the facts, the materials placed on record, the rival submissions made across the Bar, especially after going through the discharge certificate of the injured which shows that he had B.A.No.869 of 2024 ## -:9:- suffered a nasal bone fracture and septal fracture, further that the investigation in the case is in the preliminary stage, that the petitioners' custodial interrogation is necessary, that the recovery is to be effected, and on comprehending the seriousness, gravity, and nature of the offences alleged against the petitioners, I am not convinced that the petitioners have not made out any 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. 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 application for bail, the jurisdictional Court shall, B.A.No.869 of 2024 -:10:- untrammelled by any observations in this order, consider the bail application on its merits. 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** mtk/ 28.02.2024 B.A.No.869 of 2024 ## -:11:- ## **`APPENDIX OF BAIL APPL. 869/2024`** ``` PETITIONER ANNEXURES ANNEXURE 1A TRUE COPY OF CAUSALITY REGISTRATION CARD ISSUED IN THE NAME OF 2ND PETITIONER DATED 16.01.2024 OF MEDICAL COLLEGE, THRISSUR ANNEXURE 2A TRUE COPY OF THE RELEVANT PAGES OF THE DISCHARGE SUMMERY OF 3RD PETITIONER ISSUED FROM THE MEDICAL COLLEGE HOSPITAL, THRISSUR ANNEXURE 3A TRUE COPY OF THE COMPLAINT DATED 22.01.2024 BY THE 3RD PETITIONER ```