Sajin v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 BAIL APPL. NO. 1315 OF 2024 ``` ``` CRIME NO.5/2024 OF MANGALAPURAM POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER/ACCUSED NO.1:`** ``` SAJIN AGED 21 YEARS S/O SURESH, VADAKKUMPARA VEEDU, SASTHAVATTOM, VEILOOR VILLAGE, AZHOOR, THIRUVANANTHAPURAM., PIN - 695302 ``` ``` BY ADVS. M.R.SASITH NEELANJANA NAIR RIYA KOCHUMMAN P.SANTHOSHKUMAR (KARUMKULAM) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1315 of 2024 ## -:2:- ## **O R D E R** Dated this the 4[th] day of March, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the first accused in Crime No.5/2024 of the Mangalapuram Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offences punishable under Sections 308 and 324 r/w Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 28.01.2024, the accused, in furtherance of their common intention, attacked the de facto complainant and attempted to murder him. The first accused used a B.A.No.1315 of 2024 ## -:3:- chopper aimed at the head of the de facto complainant and tried to hack him. It is only because the de facto complainant evaded the attack, he did not lose his life. However, the de facto complainant suffered an injury on the back of his head. The second accused also hit the de facto complainant with a stick. Thus, the accused have committed the above offences. 4. Heard; Sri. Sasith M.R, the learned counsel appearing for the petitioner and Smt. Neema. T.V, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of Annexure A1 FIR would substantiate that the offence under Section 308 will not be attracted. The said offence has been deliberately B.A.No.1315 of 2024 ## -:4:- incorporated to deny bail to the petitioner. In any case, the petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She handed over the Accident RegisterCum-Wound Certificate of the injured to substantiate the injury sustained by the defacto complainant. She contended that the accused had used a weapon and caused injury to the defacto complainant. Therefore, 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 proper and full investigation. Hence, the application may be dismissed. 7. In **Siddharam Satlingappa Mhetre v. State of** **Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme B.A.No.1315 of 2024 -:5:- ## 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 B.A.No.1315 of 2024 ## -:6:- 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 over implication 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. B.A.No.1315 of 2024 ## -:7:- **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 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 accusation levelled against the applicant is only to enrope him in the crime and would B.A.No.1315 of 2024 ## -:8:- misuse his liberty. 9. After bestowing my anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and especially after going through the Accident Register-Cum-Wound Certificate of the defacto complainant and also appreciating Annexure A2 order passed by the Court of Session, Thiruvananthapuram, dismissing the petitioner’s similar application, I am convinced 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 surrender 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 move application for bail, the jurisdictional Court shall, untrammelled by B.A.No.1315 of 2024 ## -:9:- any observations in this order, 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 this case. Sd/- **C.S.DIAS,JUDGE** mtk/ 04.03.24 B.A.No.1315 of 2024 ## -:10:- ## **`APPENDIX OF BAIL APPL. 1315/2024`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE A1THE TRUE COPY OF THE FIR IN CRIME NO.05/2024OFMANGALAPURAMPOLICE STATION, THIRUVANANTHAPURAM DISTRICT ANNEXURE A2THE TRUE COPY OF THE ORDER DATED 29.01.2024 PASSED BY THE HON'BLE SESSIONS COURT,THIRUVANANTHAPURAM ANNEXURE A3TRUE COPY OF CRIME NO 7/2024 OF MANGALAPURAMPOLICESTATION, THIRUVANANTHAPURAM DISTRICT ```