Sandesh v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 BAIL APPL. NO. 551 OF 2024 ``` ## **`CRIME NO.1512/2023 OF KANNANALLOOR POLICE STATION, KOLLAM`** ## **`PETITIONER/ACCUSED NO.1:`** ``` SANDESH, AGED 35 YEARS S/O HELY SURENDRAN, SHAJI BHAVAN, NEAR SRI NAGARAJA TEMPLE, NALLILA P.O., KOLLAM -, PIN - 691515 BY ADVS. MANJUNATH MENON ARYA RAGHUNATH ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER, KANNANALLOOR POLICE STATION, KANNANALLOOR -, PIN – 691576 ``` ``` SR.PUBLIC PROSECUTOR SMT. SEETHA S. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.551 of 2024 2 ## **Dated this the 30[th ] day of January, 2024** ## **ORDER** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.1512/2023 of the Kannanalloor Police Station, Kollam registered against the accused (two in number) for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324, 326, 308 r/w Section 34 of the Indian Penal Code. 3. The essence of the prosecution case is that: around 7.30 p.m. on 10.12.2023, the accused out of their previous animosity towards the victim Mohanan Pillai, attacked him and caused grievous injuries to him. The second accused pushed him on the ground and the first accused hit him with a stick, which resulted in a fracture on his leg. Thus, the B.A.No.551 of 2024 3 accused have committed the above offences. 4. Heard; Sri.Manjunath Menon, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. There has been a long chequered history between the petitioner and the victim/injured. There are series of litigation between the parties. In fact, it was the injured who has attacked the petitioner’s parents. At any rate, the petitioner’s custodial interrogation is not necessary. Hence, the application may be allowed. 6. The learned Public Prosecutor vehemently opposed the application. She made available the Case Diary as well as the Accident Register-cum-Wound Certificate, to substantiate that the injured had suffered a fracture on his lower end of the fibula. She also contended that the petitioner’s custodial interrogation is necessary and B.A.No.551 of 2024 4 recovery is to be effected. The investigation is still in progress. If the petitioner is let off on 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 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 B.A.No.551 of 2024 5 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 B.A.No.551 of 2024 6 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. 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. B.A.No.551 of 2024 7 9. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the nature, gravity and seriousness of the offences alleged against the petitioner, and after perusing the Accident Register-cum Wound Certificate and taking note of the fracture suffered by the injured, that the petitioner’s custodial interrogation is necessary, and the recovery is to be effected, I hold that the petitioner has not made any exceptional circumstance to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code of Criminal Procedure. Resultantly, 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 B.A.No.551 of 2024 8 its merits on the date of surrender itself and pass orders 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** rmm30/1/2024