Sanoj A. & Fijo B. A. G. v. State of Kerala and The Station House Officer, East Police Station Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945** ## **BAIL APPL. NO. 356 OF 2024** **CRIME NO.1928/2023 OF Kollam East Police Station, Kollam** ## **PETITIONER/ACCUSED NO.1 & 2:** 1 SANOJ AGED 21 YEARS S/O. VARGHESE, PRE SETTLEMENT COLONY, PALLITHOTTAM CHERRY, PALLITHOTTAM. P.O, KOLLAM WEST VILLAGE, KOLLAM (DIST)-, PIN - 691006 2 FIJOY B AGED 21 YEARS S/O. BOXON, GALLELIO NAGAR 107, PALLITHOTTAM CHERRY, PALLITHOTTAM. P.O, KOLLAM WEST VILLAGE, KOLLAM (DIST)-, PIN - 691006 BY ADV M.RAJESH ## **RESPONDENTS/COMPLAINANTS:** 1 STATE OF KERALA HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER EAST POLICE STATION, KOLLAM CHINNAKKADA PO, KOLLAM (DIST), PIN - 691001 SR PP SMT NEEMA T V THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 356 OF 2024 2 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 2 in Crime No.1928/2023 of the Kollam East Police Station, Kollam registered against the accused (two in number) for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324 and 326 r/w Section 34 of the Indian Penal Code ('IPC', in short). 3. The gist of the prosecution case is that: around 21.50 hours on 03.12.2023, out of the previous animosity of the accused towards the defacto complainant and in furtherance of the common intention, the accsued waylaid the defacto complainant and jointly attacked him after uttering obscene words. The 1[st] accused hit the defacto complainant on his head with a helmet and caused grievous injuries to him. Thus, the accused have committed the above offences. 4. Heard; Sri.M.Rajesh, the learned counsel BAIL APPL. NO. 356 OF 2024 3 appearing for the petitioners and Smt.Neema T.V., the learned Public Prosecutor. 5. The learned counsel appearing for the petitioners submitted that the petitioners have been falsely implicated in the crime. The very fact that the incident occurred on 03.12.2023 and Annexure 1 FIR was registered on 17.12.2023 by itself proves the falsity in the crime. The petitioners were unaware under what circumstance the defacto complainant sustained the injuries. The petitioners are law abiding citizens. They have no criminal antecedents. The petitioners are willing to abide by any stringent condition that may be imposed by this Court. Hence, the petitioners may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor stoutly opposed the application. She made available the accident register cum wound certificate along with the CT scan report to demonstrate that the defacto complainant/injured had sustained undisplaced fracture of the occipital bone on the right side with fracture line extending into the base of BAIL APPL. NO. 356 OF 2024 4 skull region. The injured was hospitalised for a considerable period of time. The investigation is in progress. The petitioners' custodial interrogation is and is to be effected. If the necessary recovery petitioners are granted orders of pre-arrest bail, it would hamper the investigation. Hence, the bail 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. BAIL APPL. NO. 356 OF 2024 5 **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 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 BAIL APPL. NO. 356 OF 2024 6 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. ## 8. Likewise, in **Gurbaksh Singh Sibbia v. State of** ## **Punjab,** (1980) 2 SCC 565 ] the Hon’ble Supreme Court has held as follows: **21** . The High Court says in its fourth proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a “special case” for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not “unguided or uncanalised”, the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special case” for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of BAIL APPL. NO. 356 OF 2024 7 anticipatory bail. But one cannot go further and say that he must make out a “special case”. We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 9. On an anxious consideration of the materials placed on record, particularly after taking note of the nature, gravity, and seriousness of the offences alleged against the petitioners, that the injured had sustained serious injuries including a fracture of his skull, that the petitioners' custodial interrogation is necessary, that the recovery is to be effected and that the investigation is only at a nascent stage, I am of the definite view that the petitioners are not entitled to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I am of the view that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail BAIL APPL. NO. 356 OF 2024 8 application is dismissed. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an 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 petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no orders have been passed in this case. Sd/- **C.S.DIAS JUDGE** rkc/02.02.24 BAIL APPL. NO. 356 OF 2024 9 ## **APPENDIX OF BAIL APPL. 356/2024** PETITIONER ANNEXURES Annexure 1 THE TRUE COPY OF THE FIR IN CRIME NO. 1928/2023 OF EAST POLICE STATION, KOLLAM DATED 17.12.2023 Annexure 2 THE TRUE COPY OF THE COMMON ORDERS OF THE HON'BLE PRINCIPAL SESSIONS JUDGE, KOLLAM DATED 05.01.2024 IN CRL MC NO. 2681/2023 & 2645/2023