Shyam Prasad @ Muthu and Others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945** **BAIL APPL. NO. 1753 OF 2024** **CRIME NO.984/2023 OF PAVARATTY POLICE STATION, THRISSUR AGAINST THE ORDER/JUDGMENT DATED 16.02.2024 IN CRMC NO.37 OF 2024 OF** **DISTRICT COURT & SESSIONS COURT,THRISSUR** ## **PETITIONERS/ACCUSED 1, 3 & 4:** **1 SHYAM PRASASD @ MUTHU AGED 18 YEARS S/O SANTHOSH, KADAVATH HOUSE, THOYKKAVU DESOM, VENKIDANGU VILLAGE, CHAVAKKAD TALUK, THRISSUR, PIN - 680510** **2 NIRANJAN AGED 21 YEARS S/O RAJESH, EDAKKAYIL HOUSE, MULLASSERY DESOM, MULLASSERY VILLAGE, CHAVAKKAD TALUK, THRISSUR, PIN - 680509** **3 YADHUKRISHNAN AGED 21 YEARS S/O SASIDHARAN, KANNARAMBIL HOUSE, MULLASSERY DESOM, MULLASSERY VILLAGE, CHAVAKKAD TALUK, THRISSUR, PIN - 680509** **BY ADV RAJIT** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.03.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.1753 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 pre-arrest bail. 2. The petitioners are the accused 1, 3 & 4 in Crime No.984/2023 of the Pavaratty Police Station, Thrissur, registered against the accused for allegedly committing the offences punishable under Sections 341, 323, 324, 326, 294(b) r/w.S.34 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 23.10.2023 at around 22.30 hours, the accused in furtherance of their common intention wrongfully restrained the defacto-complainant (injured) and assaulted him by kicking and beating him. Thereafter the accused beat the injured and his friends with a helmet and the injured suffered grievous injuries to his spine and vertebra. Thus, the accused have committed the above offences. **BAIL APPL.NO.1753 OF 2024** **3** 4. Heard; Sri.Rajit, the learned counsel appearing for the petitioners and Smt. Seetha S, 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. The very fact that the offence under Section 326 IPC was not incorporated at the time of registration of the FIR by itself shows the falsity in the crime. The said offence has been deliberately incorporated only for the purpose of denying the bail to the petitioners. The incident occurred as early as on 23.10.2023. The second accused has already surrendered and he has been released on bail. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that there are specific overt acts attributed against the petitioners for causing grievous injuries to the injured. She made available the discharge **BAIL APPL.NO.1753 OF 2024** **4** summary of the injured dated 26.10.2023 issued by the Jubilee Mission Medical College Hospital, Thrissur to substantiate the fact that the injured suffered a traumatic spine injury (lower C-F anterior posterio type fracture) and was hospitalized for three days. She contended that the petitioners' custodial interrogation is necessary and recoveries have to be effected. The petitioners have been absconded after the dismissal of the application by the Court of Session, Thrissur by Annexure 1 order. If the petitioners are granted an order of pre-arrest bail, it would sabotage the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioners is that, they along with accused 2 and 5 in furtherance of their common intention assaulted and caused grievous injuries to the injured. The discharge summary produced by the learned Prosecutor substantiates the nature of injuries suffered by the injured. 8. The petitioners had moved a similar application before the Court of Session, Thrissur by filing **BAIL APPL.NO.1753 OF 2024** **5** Crl.M.C.No.37/2024. By Annexure 1 order, the learned Sessions Judge dismissed the application, taking note the grievous injuries sustained by the injured, that the petitioners' custodial interrogation is necessary and further that the recovery is to be effected. 9. In S **iddharam 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 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 **BAIL APPL.NO.1753 OF 2024** **6** 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 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 **BAIL APPL.NO.1753 OF 2024** **7** unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 10. 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 accusations levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 11. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, particularly after perusing the discharge summary of the injured, the findings of the learned Sessions Judge and the fact that the investigation in the case is only at preliminary stage, the petitioners' custodial interrogation is necessary and recovery is to be effected, **BAIL APPL.NO.1753 OF 2024** **8** I am convinced that the petitioners have not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Instead, it would sabotage the investigation and justice would be thwarted. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail 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 consider the bail application on its merits and in accordance with law. 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 order has been passed in this case. **Sd/C.S.DIAS JUDGE** **shg**