Saji Thomas v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1241 OF 2024 ``` ``` CRIME NO.201/2024 OF PUTHOOR POLICE STATION, KOLLAM ``` ## **`PETITIONER/ACCUSED:`** ``` SAJI THOMAS, AGED 55 YEARS S/O THOMAS, SAJI BHAVANAM, MALAPPARA, KULAKKADA EAST P.O, KOTTARAKARA, KOLLAM DISTRICT, PIN - 691521 ``` ``` BY ADVS. ALEXANDER GEORGE THARA BOSE LITA CHANDRAN.S ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER, PUTHUR POLICE STATION, KOLLAM DISTRICT, PIN - 691507`** ## **`OTHER PRESENT:`** ## **`PP SMT SHYNIMOLE V O`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ## **B.A. NO.1241 of 2024** ## **Dated this the 5[th] day of March, 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 petitioner is the sole accused in Crime No.201/2024 of the Puthur Police Station, Kollam registered against him for allegedly committing the offence punishable under Section 304(II) of the Indian Penal Code. 3. The essence of the prosecution case is that; on 5.2.2024 at around 21.50 hours, while the deceased (Shaji) was riding a motorcycle near Laksham veedue colony junction at Kulakkada, the accused rode a motorcycle bearing No. KL 24 E-87 in a rash and negligent manner, and on the wrong side, and hit the vehicle of the deceased. The deceased fell down from his ``` 3 ``` ## **B.A. NO.1241 of 2024** vehicle and succumbed to the fatal injuries. Thus, the accused has committed the above offence. 4. Heard Sri. Alexander George, learned counsel appearing for the petitioner and Smt.Shynimol. V.O, the learned Public Prosecutor. 5. Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. A reading of the FIR would substantiate that the incident was purely an accident. At any rate, the offences under Sections 304(II) will not be attracted. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report. It is stated that the accused had violated the traffic rules and rode his motorcycle on **B.A. NO.1241 of 2024** ``` 4 ``` the wrong side of the public road at a high speed so as to endanger human life, and hit the motorcycle of the deceased. In the impact, the deceased fell down from his vehicle and sustained fatal injuries. In the investigation, the statements of the ocular witnesses have been recorded and also the CCTV footages have been retrieved. All the said incriminating materials demonstrate the negligence and over speed of the vehicle ridden by the petitioner. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of prearrest bail, it would hamper with the full and proper investigation of the case. 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.1241 of 2024** ``` 5 ``` 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; (vii) The courts must evaluate the entire **B.A. NO.1241 of 2024** ``` 6 ``` 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 subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. **B.A. NO.1241 of 2024** ``` 7 ``` 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 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. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, and prima facie there are incriminating materials to establish the active involvement of the petitioner in the crime, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am convinced that the petitioner has not made out any exceptional grounds to **B.A. NO.1241 of 2024** ``` 8 ``` 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 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 in accordance with law. 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** **rmm/5/3/2024**