Siju and Sivan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 ``` ## **`BAIL APPL. NO. 216 OF 2024`** ``` CRIME NO.765/2023 OF VAGAMON POLICE STATION, IDUKKI ``` ## **`PETITIONERS/ACCUSED 1 AND 3:`** ``` 1SIJU AGED 33 YEARS S/O SIVAN PUTHENVEETTIL HOUSE, VATTAPATHAL KURISHUMALA, VAGAMON, PEERMADE, IDUKKI DISTRICT, PIN - 685503 2SIVAN AGED 58 YEARS S/O THANKAKANNU NADAR, PUTHENVEETTIL HOUSE, VATTAPATHAL KURISHUMALA, VAGAMON, PEERMADE, IDUKKI DISTRICT., PIN - 685503 BY ADVS. T.A.UNNIKRISHNAN K.K.AKHIL T. SREELAKSHMI UNNIKRISHNAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 BY ADV SMT NEEMA T. V. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO. 216 OF 2024 ``` **C.S.DIAS, J.** **---------------------------------------------------B.A.No. 216 of 2024 ---------------------------------------------------Dated this the 1[st] day of February, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. Petitioners are the accused 1 and 2 in Crime No.765/2023 of Vagamon Police Station, Idukki registered against them for allegedly committing the offences punishable under Sections 294(b), 506, 324, 326 and 427 read with Section 34 of the Indian Penal Code, 1860, (‘IPC’, for short). The learned Public Prosecutor submits that Section 307 IPC has also been incorporated. 3. The essence of the prosecution case is that, at around 8.00pm on 23.12.2023, the defacto ``` 3 ``` ``` BAIL APPL. NO. 216 OF 2024 ``` complainant, who was working as a watcher in M.M.J. Estate, had questioned the accused for encroaching into the estate property. Then, the first accused beat him with an iron rod, the second accused caused an injury with a knife and the third accused also caused injury behind his head with a knife, and they also caused a loss of Rs.10,000/-(Rupees Ten thousand only) to the autorickshaw of the defacto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri. Unnikrishanan T. A., the learned counsel appearing for the petitioners and Smt. Neema T. V., the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that, petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime at the influence of the ``` 4 ``` ``` BAIL APPL. NO. 216 OF 2024 ``` estate owners, where the defacto complainant was employed. In fact, there are several civil litigations between the petitioners and the estate owners pending before the Court for Munsiff, Peermade. The petitioners are the owners of the land. Actually, it was the defacto complainant who had encroached into the property of the petitioners and caused the incident. The defacto complainant is a person with criminal antecedents. Although, the incident allegedly occurred on 23.12.2023, the FIR was only lodged on 25.12.2023, which proves the falsity in the complaint. At any rate, the petitioners’ custodial interrogation is not necessary. The petitioners are willing to cooperate with the investigating agency and abide by any stringent conditions that may be imposed by this Court. 6. The learned Public Prosecutor vehemently opposed the application. She contended that the ``` 5 ``` ``` BAIL APPL. NO. 216 OF 2024 ``` petitioners have brutally assaulted the defacto complainant and caused grievous injuries to him. She handed over the accident register cum wound certificate of Taluk Head Quarters Hospital, Peermade dated 24.12.2023 recorded at 12.00am to demonstrate that the defacto complainant had sustained several lacerated wounds and two fractures and the brutality that was meted out on him. She submitted that the petitioners’ custodial interrogation is necessary and recovery is to be effected. The second accused has already been arrested by the Investigating Officer. If the first petitioner is granted an order of pre-arrest bail, it would hamper with the full and proper investigation of the crime. 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: ``` 6 ``` ``` BAIL APPL. NO. 216 OF 2024 ``` **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 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; ``` 7 ``` ``` BAIL APPL. NO. 216 OF 2024 ``` (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 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 ``` ``` BAIL APPL. NO. 216 OF 2024 ``` 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 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 ``` ``` BAIL APPL. NO. 216 OF 2024 ``` 9. After bestowing my anxious consideration to the materials placed on record, particularly after going through the accident register cum wound certificate, the nature, gravity and seriousness of the offence alleged against the petitioners, that the custodial interrogation of the petitioners is necessary, that the recovery is to be effected and that the investigation is only at its nascent stage, I am of the definite view that the petitioners are not entitled to any exceptional grounds 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, the bail application is dismissed. 10. 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 ``` 10 ``` ``` BAIL APPL. NO. 216 OF 2024 ``` 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 order has been passed in this case. **Sd/C.S. DIAS JUDGE** BR