Sandeep.K v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 BAIL APPL. NO. 1111 OF 2024 ``` ``` CRIME NO.1265/2023 OF Koyilandy Police Station, Kozhikode ``` ## **`PETITIONER/ACCUSED 4:`** ``` SANDEEP.K AGED 33 YEARS S/O.SATHYAN, KANIYAM KUNNUMMAL HOUSE, MOODADI (P.O), MANDAMANGALAM, MOODADI VILLAGE, KOYILANDY, KOZHIKODE (DIST)., PIN - 673307 BY ADV K.DEEPA (PAYYANUR) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY PP SMT SHYNI V O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1111 of 2024 -:2:- ## **O R D E R** Dated this the 19[th] day of February, 2024 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 4[th] accused in Crime No.1265/2023 of the Koyilandy Police Station,Kozhikode, registered against the accused for the offences punishable under Sections 143, 147, 148, 341, 324, 307 r/w. 149 of the Indian Penal Code. 3. The prosecution case is that: on 19.11.2023 at about 20.00 hours, while the defacto complainant and his friends were standing near Gayathri Auditorium at Kollam, about 15 persons including the accused 1 to 3 attacked them with dangerous weapons; such as nanjakku, iron pipe and beer bottle and caused grievous injuries to the defacto complainant and his friends. Thus, B.A.No.1111 of 2024 ## -:3:- the accused have committed the above offences. 4. Heard; Smt.Deepa K Payyannur, learned counsel appearing for the petitioner and Smt. Neema T.V., the learned 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. The petitioner was not been named in the FIR. There was a case and a counter case that were registered in connection with the same incident. The petitioner has been arraigned as an accused in the crime due to the political rivalry. The accused 1 to 3 were released on bail by this Court as per Annexure A3 order. The petitioner is willing to abide by any condition that may be imposed by this Court and cooperate with the investigation. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed B.A.No.1111 of 2024 ## -:4:- the application. She contended that, in the investigation that was conducted, it was revealed that the petitioner was also involved in the crime. There is a specific overt act alleged against the petitioner that he hit the injured with a stone. She made available the Accident RegisterCum-Wound Certificate and the discharge certificate to substantiate the fact that one of the injured, named Vyshakh, suffered a fracture of the left parietal bone and a fracture of the left zygomatic bone. She also drew the attention of this Court to the treatment certificates of the other injured. She contended that the petitioner’s custodial interrogation is necessary and that recovery is to be effected. If the petitioner is let off on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. 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.1111 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 to repeat similar or other offences; (v) Where the accusations have been made B.A.No.1111 of 2024 ## -:6:- 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 B.A.No.1111 of 2024 ## -:7:- 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 misuse his liberty. 9. After bestowing my anxious consideration to the facts, the materials placed on record, the rival B.A.No.1111 of 2024 ## -:8:- submissions made across the Bar, especially on analysing the Accident Register-Cum-Wound Certificate of the injured, I am prima facie satisfied of the accusations levelled against the petitioner. On comprehending the seriousness, gravity, and nature of the offences alleged against the petitioners, that the petitioner’s custodial interrogation is necessary, that the recovery is to be effected, and that the investigation is in the preliminary stage, I am of the definite view that the petitioner has 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. 10. 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 B.A.No.1111 of 2024 -:9:- of surrender itself. Then, if the petitioner moves application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. 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/ 19.02.2024 B.A.No.1111 of 2024 ## -:10:- ## **`APPENDIX OF BAIL APPL. 1111/2024`** ``` PETITIONER ANNEXURES Annexure 1TRUE COPY OF THE FIR DATED 20.11.2023 OF CRIME NO. 1265/2023 OF KOYILANDY POLICE STATION; KOZHIKODE ``` ``` Annexure 2TRUE COPY OF THE FIR DATED 11.11.2023 OF CRIME NO. 1235/2023 OF KOYILANDY POLICE STATION; KOZHIKODE REGISTERED U/S.143, 147,341,323 R/W.149 IPC, AGAINST THE DE- FACTO COMPLAINANT AND OTHERS. ``` ``` Annexure 3TRUE COPY OF THE ORDER DATED 05.01.2023 IN B.A. NO. 11559/2023 OF THIS HON'BLE COURT. ``` ``` Annexure 4TRUE COPY OF THE ORDER DATED 31.01.2024 IN CRL. M. C NO.113/2024 OF THE LEARNED COURT OF SESSION, KOZHIKODE DIVISION IN CRIME NO.1265/2023 OF KOYILANDY POLICE STATION, KOZHIKODE. ```