SAHRUDYAKUMAR N.S & VISHNU DAS C.P 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. 1356 OF 2024** **CRIME NO.898/2023 OF CHAVAKKAD POLICE STATION, THRISSUR** **AGAINST THE ORDER/JUDGMENT CRMC 1924/2023 OF DISTRICT COURT & SESSIONS** **COURT,THRISSUR** ## **PETITIONERS/ACCUSED 2 & 3:** **1 SAHRUDYAKUMAR N.S AGED 22 YEARS S/O SKANDAKUMAR, NEDUVILEDATH HOUSE, MANATHALA VILLAGE, AMSOM, DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680506 2 VISHNU DAS C.P AGED 20 YEARS S/O PREMAN C.G, CHANASSERY HOUSE, MALLISSERY PARAMBU, GURUVAYUR VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN - 680506 BY ADVS. RAJIT V.V.JOY RAMAKRISHNAN M.N.** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.02.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.1356 of 2024 2 ## **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 & 3 in Crime No.898/2023 of the Chavakkad Police Station, Thrissur, registered against the accused (3 in number) for allegedly committing the offences punishable under Sections 326, 324, 506, 341, 447, 427 r/w. S.149 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 01.12.2023 at around 19.15 hours, the accused in prosecution of their common intention and out of their previous animosity attacked one Noufal. On seeing the same, the defacto complainant attempted to intervene and rescue Noufal. Then, the first accused threw a soda bottle at Noufal, which hit on his head and he sustained grievous injuries, including a fracture on his head. B.A.No.1356 of 2024 3 Thereafter, the accused 1 to 3 assaulted the said injured and also caused extensive mischief at the place of occurrence namely “Greenland Hotel”, by destroying the furniture and causing a loss of Rs.50,000/-. Thus, the accused have committed the above offences. 4. Heard; Sri.Rajit, the learned counsel appearing for the petitioners and Smt.Neema T.V., the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of Annexure 1 F.I.R and F.I. Statement would substantiate the fact that the non-bailable offence under Section 326 will not be attracted against the petitioners. The first accused has already been enlarged on bail by Annexure 2 order by this Court on 24.01.2024. At any rate, the petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. B.A.No.1356 of 2024 4 6. The learned Public Prosecutor strenuously opposed the application. She contended that the accused 1 to 3 in prosecution of their common intention had assaulted the friend of the defacto complainant and he sustained grievous injuries. She made available the treatment certificate of the injured dated 02.12.2023 to substantiate the fact that the injured had sustained a frontal bone depressed fracture and was treated in the Elite Mission Hospital, Thrissur. She submitted that the petitioners' custodial interrogation is necessary and recoveries have to be effected. If the petitioners are let off on bail, there is every likelihood of them intimidating the witnesses. Hence, the application may be dismissed. 7. The gist of prosecution allegations against the petitioners is that they along with the first accused had assaulted the injured and the first accused threw a soda bottle on the injured and he sustained grievous injuries. the first accused was arrested on Indisputably, 13.12.2023. By Annexure 2 order dated 24.01.2024, the B.A.No.1356 of 2024 5 ## first accused was released on bail. 8. The petitioners had moved a similar application before the Court of Session, Thrissur, which, the learned Sessions Judge, by Annexure 5 order, dismissed the application on finding that the investigation was at the preliminary stage, that the petitioners' custodial interrogation is necessary and there was every likelihood of them tampering with the evidence. 9. In S **iddharam 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 to do. In any event, this is the legislative mandate which we are bound to respect and honour. B.A.No.1356 of 2024 6 **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 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 B.A.No.1356 of 2024 7 ## 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. 10. 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 accusations levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 11. After bestowing my anxious consideration to the facts, the materials placed on record, the rival B.A.No.1356 of 2024 8 submissions made across the Bar, particularly taking note of the specific overt act alleged against the petitioners, that petitioners' custodial interrogation is necessary, that the recovery is to be effected and further the investigation is only at a nascent stage insofar as the petitioners are concerned, I 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 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. If the petitioners do not B.A.No.1356 of 2024 9 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 ``` ``` shg ```