Rijesh P P, Athul M @ Chicku and Sandeep T v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 BAIL APPL. NO. 1343 OF 2024 ``` ``` CRIME NO.45/2024 OF CHOKLI POLICE STATION, KANNUR ``` ## **`PETITIONERS/ACCUSED:`** ``` 1RIJESH P P AGED 36 YEARS S/O ANANDAN, PALLIPARAMBATH (H), PULIYANAMBRAM, PERINGATHUR, KANNUR DISTRICT, PIN - 670675 ``` - **`2 ATHUL M @ CHICKU AGED 26 YEARS S/O. PAVITHRAN, MEETHAL (H), KALLARA, PERINGATHUR, KANNUR DISTRICT, PIN - 670676`** - **`3 SANDEEP T AGED 27 YEARS S/O RAJEEVAN, THOKKOTTIL (H), PERINGATHUR, KANNUR DISTRICT, PIN - 670675`** ## **`BY ADV K.DILIP`** ## **`RESPONDENT/COMPLAINANT/STATE:`** ## **`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 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. NO.1343 of 2024** ``` 2 ``` ## **Dated this the 26[th] day of February, 2024** ## **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 petitioners are the accused 2 to 4 in Crime No.45/2024 of the Chokli Police Station, Kannur, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324, 308 r/w Section 149 of the Indian Penal Code 3. The crux of the prosecution case is that; on 23.1.2024 at around 7 p.m., the accused in prosecution of their common intention formed an unlawful assembly and restrained the de facto complainant, and the first accused assaulted him with a firewood on his leg, and the ``` 3 ``` ## **B.A. NO.1343 of 2024** accused 2 to 4 assaulted him with a sharp iron object on his head. It is only because the de facto complainant warded off the attack, he did not lose his life. Thus, the accused have committed the above offence. 3. Heard Sri. K Dilip, learned counsel appearing for the petitioners and Smt.Seetha S, the learned Senior Public Prosecutor. 4. Learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. They have been falsely implicated in the crime. Section 308 of IPC has been deliberately incorporated, to deny bail to the petitioners. In fact, the first accused was granted bail by the Court of Session as per Annexure 2 order. The petitioners are at par with the said accused. The learned Sessions Judge has dismissed the application of the petitioners, solely on the ground that they have criminal antecedents. The petitioners custodial interrogation is ``` 4 ``` ## **B.A. NO.1343 of 2024** not necessary. The petitioners are willing to abide by any stringent condition that may be imposed by this Court and co-operate with the Investigating Officer. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that the petitioners cannot seek parity with the first accused. The petitioners had hit the de facto complainant with an iron rod on his head and he sustained injuries on his head. She made available the Accident Register cum Wound Certificate issued by the Chokli Medical Centre, dated 23.1.2024, to substantiate the injuries sustained by the de facto complainant. She contended that the petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of bail, they would tamper with the evidence. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioners ``` 5 ``` ## **B.A. NO.1343 of 2024** is that, they in prosecution of their common intention, assaulted the de facto complainant by hitting him on his head with a sharp iron object. The Accident Register cum Wound Certificate shows that the injured sustained two injuries on his parietal region of scalp, which actually corroborates with the accusation levelled against the petitioners. 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 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 **B.A. NO.1343 of 2024** ``` 6 ``` 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 **B.A. NO.1343 of 2024** ``` 7 ``` 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. ## 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 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 ``` 8 ``` ## **B.A. NO.1343 of 2024** 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. 9. On an anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly after going through the Accident Register cum Wound Certificate of the injured, that the investigation is at its preliminary stage, that the petitioners custodial interrogation is necessary, and recovery is to be effected, I am 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 Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days ``` 9 ``` ## **B.A. NO.1343 of 2024** 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 an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and pass orders in accordance with law. 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. **C.S.DIAS, JUDGE** ``` rmm/26/2/2024 ```