Shajil v. State of Kerala and The Station House Officer, Kazhakkottom Police Station

## **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. 11043 OF 2023** **CRIME NO.1689/2023 OF KAZHAKKUTTOM POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/PETITIONER/PETITIONER/ACCUSED:** **SHAJIL AGED 29 YEARS S/O.SHEEJA VADIYIL THOPP VEEDU, MENAMKULAM, KAZHAKOTTAM.P.O.,KAZHAKOOTAM, TRIVANDRUM., PIN - 695582** **BY ADVS. S.SUDHISH KUMAR HARIKRISHNA DAYAL K. K.B.DAYAL SIBI KARUN REMYA MURALI** ## **RESPONDENTS/RESPONDENTS/COUNTER PETITIONERS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **2 THE STATION HOUSE OFFICER KAZHAKKOOTTAM, POLICE STATION, TRIVANDRUM, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT, PIN - 695022** ## **OTHER PRESENT:** **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.11043 OF 2023** **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 petitioner is the sole accused in crime No.1689/2023 of the Kazhakkuttom Police Station, Thiruvananthapuram registered against him for allegedly committing the offences punishable under Sections 294(b), 324, 341, 506 and 308 of the Indian Penal Code. It is submitted that Section 326 has been subsequently incorporated in the crime. 3. The gist of the prosecution case is that: around 3.30 p.m on 22.11.2023, the defacto complainant had entered the autorickshaw of the accused and directed to drop him near KTDC bar, Meenamkulam. The accused dropped the defacto complainant at the said place, but he did not pay the fare. There was an altercation between the **BAIL APPL.NO.11043 OF 2023** **3** parties and the accused assaulted the defacto complainant and caused grievous injuries to him. Thus, the accused has committed the offences. 4. Heard; Sri.Sudhish Kumar, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him and he is falsely implicated in the crime. The defacto complainant is a person with criminal antecedents. He is the accused in two criminal cases for committing the offence punishable under Section 302 of IPC. In fact, it was the defacto complainant who assaulted the petitioner after not paying the amount. The petitioner is the sole breadwinner of the family. He has two minor children. The petitioner is willing to cooperate with the investigation and abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor vehemently opposed **BAIL APPL.NO.11043 OF 2023** **4** the application. She contended that the petitioner had cut the hand of the defacto complainant with a chopper and he has suffered a fracture on the ulna area. She made available the case diary as well as the treatment record dated 19.12.2023 to prove the fracture. The investigation is in progress. The petitioner's custodial interrogation is necessary and recovery is to be effected. Therefore, 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 **BAIL APPL.NO.11043 OF 2023** **5** 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 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; **BAIL APPL.NO.11043 OF 2023** **6** (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. 8. Likewise, in **Jai Prakash Singh v. State of Bihar & Anr.** [(2012) 4 SCC 379] the Hon'ble Supreme Court has held that an order of pre-arrest bail shall be granted only in exceptional cases where the court is prima facie of the view that the applicant was falsely enroped in crime and that he is not likely to misuse his liberty. 9. After bestowing my anxious consideration to the materials placed on record, the rival submissions made across the bar, taking into account the nature, gravity and **BAIL APPL.NO.11043 OF 2023** **7** seriousness of the offences alleged against the petitioner, that the investigation in the case is at a preliminary stage, that the recovery is to be effected and the petitioner's custodial interrogation is necessary, I am of the definite view that the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Therefore, 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 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 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 **BAIL APPL.NO.11043 OF 2023** **8** petitioner as if no order has been passed in this case. **Sd/C.S.DIAS JUDGE** **shg**