Sajan Varghese @ Joji v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 1415 OF 2024 ``` ``` CRIME NO.80/2024 OF KONNI POLICE STATION, PATHANAMTHITTA ``` ## `PETITIONER:` ``` SAJAN VARGHESE @ JOJI, AGED 35 YEARS S/O. VARGHESE, CHARUVIL PUTHANVEEDU, PAYYANAMON P.O., KONNITHAZHAM, PATHANAMTHITTA, PIN – 689692 ``` ``` BY ADVS.V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN RALPH RETI JOHN APPU BABU GIRIDHAR KRISHNA KUMAR VISHNUMAYA M.B. GEETHU T.A. APOORVA RAMKUMAR ``` ## `RESPONDENT:` ``` 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 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.1415/2024_ _-:2:-_ _Dated this the 5[th] day of April, 2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No.80/2024 of Konni Police Station, Pathanamthitta, registered against the accused, for allegedly committing the offence punishable under Sections 341 & 324 of the Indian Penal Code, 1860(in short, ‘IPC’). Subsequently, the offence under Section 326 of the IPC has also been incorporated. 3. The crux of the prosecution allegation is that: on 27.01.2024, at around 16 hours, the accused wrongfully restrained the de-facto complainant, who was travelling in an auto rickshaw, and assaulted him with a lever, and caused grievous injuries to him. Thus, the accused has committed the above offences. _B.A.No.1415/2024_ _-:3:-_ 4. Heard; Sri.V. John Sebastian Ralph, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The very fact that Section 326 of the IPC was not incorporated at the time of registration of the First Information Report proves the falsity in the crime. The de-facto complainant is a drunkard, and he always assaults his wife suspecting her fidelity. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail _B.A.No.1415/2024_ _-:4:-_ objection report. He stated that the petitioner had brutally assaulted the de-facto complainant, who suffered a left scapular fracture. The petitioner is a person with criminal antecedents since he is involved in Crime Nos.594/2018 & 1080/2023 of Konni Police Station. The petitioner’s custodial interrogation is necessary and recovery is to be effected. She also made available the treatment certificate of the de-facto complainant issued by the Government Medical College Hospital, Kottayam, dated 15.03.2024, to substantiate the fact that the de-facto complainant had suffered a scapular fracture. She stated that, if the petitioner is granted an order of pre-arrest bail, it would sabotage the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that he wrongfully restrained the de-facto complainant and assaulted him with a lever, and he _B.A.No.1415/2024_ _-:5:-_ ## suffered a scapular fracture. 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 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 _B.A.No.1415/2024_ _-:6:-_ 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 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 _B.A.No.1415/2024_ _-:7:-_ 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. 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 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. 10. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as _B.A.No.1415/2024_ _-:8:-_ ## follows: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). 24.We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against _B.A.No.1415/2024_ _-:9:-_ unwarranted arrest and we say that such orders shall be passed in eminently fit cases. ….. ……” 11. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary and that the recovery is to be effected and moreover, the petitioner is a person with criminal antecedents, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 _B.A.No.1415/2024_ _-: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, consider the bail application on its merits. 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 the case. Sd/- ## **C.S.DIAS,JUDGE** DST/05.04.24 //True copy// P.A. To Judge