Sivapradas V.U. and Ajith T.S. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945 ``` ``` BAIL APPL. NO.11057 OF 2023 ``` ``` CRIME NO.1090/2023 OF ALOOR POLICE STATION, THRISSUR ``` ``` PETITIONERS/ACCUSED: ``` ``` 1SIVAPRADAS V.U., AGED 23 YEARS, VATTAPARMBIL HOUSE, MURIYAD P.O., THRISSUR, PIN-680 683. 2AJITH T.S., AGED 24 YEARS, THAYYIL HOUSE, MURIYAD P.O., THRISSUR, PIN-680 584. ``` ``` BY ADV. VISHNUPRASAD NAIR ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031. ``` ## **`SMT. NEEMA T.V., SENIOR PUBLIC PROSECUTOR`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- ``` BAIL APPL. NO.11057 OF 2023 ``` **C.S. DIAS, J. -----------------------------------------------------B.A. No.11057 of 2023 ----------------------------------------------------Dated this the 24[th] day of January, 2024** **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 accused 1 and 2 in Crime No.1090 of 2023 of the Aloor Police Station, Thrissur, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 448, 341, 294(b), 323, 324, 326 and 34 of the Indian Penal Code, 1860 _._ 3. The essence of the prosecution case is that: at around 21.30 hours on 11.11.2023, the accused stopped the de facto complainant, punched him with a weapon on -3- ``` BAIL APPL. NO.11057 OF 2023 ``` his nose and the upper part of his left eye and ear. He was also kicked from behind. The accused also punched the wife of the de facto complainant and she too sustained an injury. Thus, the accused had committed the above offences. 4. Heard; Sri. Vishnu Prasad Nair, the learned counsel appearing for the petitioners and Smt. Neema T.V., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They are falsely implicated in the crime. The petitioners' custodial interrogation is not necessary. The petitioners are ready to abide by any stringent condition that may be imposed by this Court. Hence, the bail application may be allowed. -4- ``` BAIL APPL. NO.11057 OF 2023 ``` 6. The learned Public Prosecutor vehemently opposed the application. She submitted that the petitioners have caused grievous injuries to the de facto complainant and his wife. In fact, the de facto complainant has sustained a displaced fracture of his nasal bone, as evidenced by the accident register cum wound certificate dated 12.11.2023 issued by the Government Medical College Hospital, Thrissur. The petitioners' custodial interrogation is necessary and the recovery is to be effected. Investigation is only at a nascent stage. If the petitioners are let off on bail, it would hamper with the investigation. 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: -5- ## **`BAIL APPL. NO.11057 OF 2023`** **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; (vii) The courts must evaluate the entire available -6- ## **`BAIL APPL. NO.11057 OF 2023`** 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. In **Jai Prakash Singh v. State of Bihar and another,** [(2012) 4 SCC 379] the Hon’ble Supreme -7- ## **`BAIL APPL. NO.11057 OF 2023`** Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 9. After bestowing my anxious consideration to the materials placed on record, the rival submission made across the Bar, particularly after going through the accident register cum wound certificate and the discharge card of the de facto complainant, and taking into account the nature, gravity, and seriousness of the offence alleged against the petitioners, that the investigation in the case is at its nascent stage, that the custodial interrogation of -8- ## **`BAIL APPL. NO.11057 OF 2023`** the petitioners is necessary and the recovery is to be effected, 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 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, 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 -9- ``` BAIL APPL. NO.11057 OF 2023 ``` Officer shall be free to arrest the petitioners as if no order has been passed in this case. Sd/- **C.S. DIAS JUDGE** bpr -10- ## **`BAIL APPL. NO.11057 OF 2023`** ## **`APPENDIX OF BAIL APPL. 11057/2023`** ## **`PETITIONERS' ANNEXURES`** ``` Annexure 1 ``` ``` A TRUE COPY OF THE FIR DATED 12.11.2023 IN CRIME NO.1090/2023 OF THE ALOOR POLICE STATION, THRISSUR ```