Shanavas and Shyjal v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 BAIL APPL. NO. 680 OF 2024** **CRIME NO.583/2023 OF PANAMARAM POLICE STATION, Wayanad PETITIONER/1ST AND 2ND ACCUSED:** **1 SHANAVAS AGED 38 YEARS S/O.MUHAMMED KOYA, VAZHAKULATHIL HOUSE, PANAMARAM.P.O., MANANTHAVADY, WAYANAD, PIN - 670721 2 SHYJAL AGED 40 YEARS S/O.HAMZA, PANNIKODAN HOUSE, KAITHAKKAL, CHERUKATTOOR.P.O., PANAMARAM, MANANTHAVADY, WAYANAD, PIN - 670721** **BY ADVS. M.A.AHAMMAD SAHEER E.A.HARIS MUHAMMED YASIL** ## **RESPONDENT/STATE AND COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **sr pp sri c s hrithwik** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** **BAIL APPL. NO. 680 OF 2024** **2** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of prearrest bail. 2. The petitioners are accused Nos. 1 and 2 in Crime No.583/2023 of the Panamaram Police Station, Wayand, registered against the accused for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 324, 308 and 506 read with Section 34 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The gist of the prosecution case is that, on 15.12.2023, at about 22 hours, while the de-facto complainant and his friends were travelling on motorcycles from Mananthavady to Kalpetta, the accused in furtherance of their **BAIL APPL. NO. 680 OF 2024** **3** common intention, obstructed the vehicles and the first accused attacked the friend of the defacto complainant, named Sayanth with a knife and the second accused attacked a person named Anand with an iron rod. Thus, the accused have committed the above offences. 4. Heard; Sri. M.A.Ahammad Saheer, the learned counsel appearing for the petitioners and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them and they have been falsely implicated in the crime. The perusal of the accident register cum wound certificate ie, Annexures A4 and A5 would substantiate that the injured have not suffered any serious injuries. Therefore, the petitioners custodial **BAIL APPL. NO. 680 OF 2024** **4** interrogation is not necessary. No recovery is to be effected. The petitioners are willing to cooperate with the investigation. The petitioners are also willing to abide by any stringent conditions that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor vehemently opposed the application. He contended that there are specific overt acts alleged against the petitioners, who have inflicted injuries on two persons, including a deep injury on the neck of the injured. The petitioners custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it will hamper with the investigation. Hence, the application may be dismissed. **BAIL APPL. NO. 680 OF 2024** **5** # 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. 680 OF 2024** **6** **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; (112.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; (112.iii) The possibility of the applicant to flee from justice; (112.iv) The possibility of the accused's likelihood to repeat similar or other offences; (112.v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (112.vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (112.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; (112.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; **BAIL APPL. NO. 680 OF 2024** **7** (112.ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (112.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. After bestowing my anxious consideration to the materials placed on record, the rival submission made across the Bar, and taking into account the nature, gravity, and seriousness of the offences alleged against the petitioners, that the investigation in the case is at its nascent stage, that the custodial interrogation of the petitioners are necessary, I **BAIL APPL. NO. 680 OF 2024** **8** am of the view that the petitioners are not entitled to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, these bail applications are dismissed. 9. 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 does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the **BAIL APPL. NO. 680 OF 2024** **9** petitioners as if no order has been passed in this case. **Sd/- C.S.DIAS(J) JUDGE** lsn