Rajeev v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ## **`BAIL APPL. NO. 103 OF 2024`** ## **`CRIME NO.751/2023 OF KAREELAKULANGARA POLICE STATION,`** ## **`ALAPPUZHA`** ## **`PETITIONER:`** ``` RAJEEV AGED 37 YEARS RAJEEV BHAVANAM ERAVA PATHIYOOR,ALAPPUZHA,KERALA, PIN - 690106 BY ADVS. AMAR S.R. R.KISHORE (KALLUMTHAZHAM) ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER AGED 45 YEARS KAREELAKULANGARA POLICE STATION,ALAPPUZHA, PIN - 690502 ``` ``` BY ADV SMT SEETHA S. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO. 103 OF 2024 ``` ## **C.S.DIAS, J.** **---------------------------------------------------B.A.No. 103 of 2024 ---------------------------------------------------Dated this the 30[th] day of January, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. Petitioner is the sole accused in Crime No.751/2023 of Kareelakulangara Police Station, Alappuzha, registered against the petitioner for allegedly committing the of ences punishable under Sections 294(b) and 326 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The gist of the prosecution case is that, on 16.12.2023 at around 21.30 hours, the accused attacked the defacto complainant/injured with a soda bottle and caused grievous injuries to him. Thus, the accused has committed the above offences. ``` 3 BAIL APPL. NO. 103 OF 2024 ``` 4. Heard; Sri. Amar S. R., the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioner submitted that petitioner is falsely implicated in the case and is totally innocent of the accusations levelled against him. In fact, the defacto complainant had erected an unauthorised shop in the petitioner’s property, regarding which the petitioner complained to the Panchayat authorities. This is to wreck vengeance on the petitioner in view of the said complaint, that the defacto complainant attacked the petitioner. The petitioner has also sustained injuries in the attack. At any rate, the offence under Section 326 IPC will not be attracted. The petitioner has no criminal antecedents. The petitioner is willing to co-operate with the investigation officer and abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. ``` 4 ``` ``` BAIL APPL. NO. 103 OF 2024 ``` 6. The learned Public Prosecutor opposed the application. She contended that the petitioner had brutally assaulted the defacto complainant and caused grievous injuries to him. She made available that the case diary and the accident register cum wound certificate, dated 16.12.2023 to establish the fracture sustained by the defacto complainant on the 5[th] metacarpal. She submitted that the investigation is in progress. The petitioner’s custodial interrogation is necessary and recovery is to be effected. 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 learned counsel appearing for the defacto complainant also opposed the application and reiterated the submissions of the learned Public Prosecutor. 8. In **Siddharam Satlingappa Mhetre v. State of** **Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme ``` 5 ``` ``` BAIL APPL. NO. 103 OF 2024 ``` ## 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. **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; ``` 6 ``` ``` BAIL APPL. NO. 103 OF 2024 ``` (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 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 2024:KER:4965 B.A.No.11403 of 2023 -:7:- have to be considered in the matter of grant of bail and in ``` 7 ``` ``` BAIL APPL. NO. 103 OF 2024 ``` 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. After bestowing my anxious consideration to the materials placed on record, particularly taking into account the nature, gravity and the seriousness of the offences alleged against the petitioner, that the investigation of the case is in progress, that the custodial interrogation of the petitioners is necessary and the recovery is to be effected, I am of the definite view that the petitioner is not entitled to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. ``` 8 ``` ``` BAIL APPL. NO. 103 OF 2024 ``` Therefore, 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 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 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** BR ``` 9 ``` ## **`BAIL APPL. NO. 103 OF 2024`** ## **`APPENDIX OF BAIL APPL. 103/2024`** ``` PETITIONER’S ANNEXURES Annexure A 1THE TRUE COPY OF THE FIR NUMBERED AS 751/2023 DATED 17.12.2023 ``` ``` RESPONDENT’S ANNEXURES: NIL ```