Sreejith.K v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 BAIL APPL. NO. 1265 OF 2024 ``` ``` CRIME NO.115/2024 OF PAYANGADI POLICE STATION, KANNUR ``` ## **`PETITIONER/ACCUSED:`** ``` SREEJITH.K AGED 34 YEARS S/O SREENIVASAN (LATE), KUNNATH HOUSE, PUTHIYAVALAPPU, PUTHIYANGADI MADAYI.P.O, KANNUR DISTRICT, PIN - 670304 BY ADVS. P.S.BINU K.SEENA ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1265 of 2024 -:2:- ## **O R D E R** Dated this the 23[rd] day of February, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the sole accused in Crime No.115/2024 of the Pazhayangadi Police Station, Kannur, registered against him for allegedly committing the offences punishable under Sections 448, 341, 323, 324 and 308 of the Indian Penal Code. Subsequently, the offences under Sections 307 and 326 have also been incorporated. 3. The crux of the prosecution case is that: on 11.02.2024 at about 20.30 hours, while the defacto complainant was talking with her sister in the courtyard of her house, the accused trespassed into her house and attacked the defacto complainant’s husband using his B.A.No.1265 of 2024 ## -:3:- hands and an iron rod. It is only because the defacto complainant evaded the attack, his life was saved. The motive behind the crime is an earlier property dispute between the parties. Thus, the accused have committed the above offences. 4. Heard; P.S. Binu, the learned counsel appearing for the petitioner and Smt. Neema. T.V, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioner is totally innocent of the accusations levelled against him. There is a case and counter case registered against the parties. At any rate, the offence under Section 308 will not be attracted. The petitioner’s custodial interrogation is not necessary, and the recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She contended that the defacto B.A.No.1265 of 2024 -:4:- complainant had sustained serious injuries. She made available the treatment certificate issued by the AKG Memorial Co-operative Hospital, Talap, Kannur, dated 15.02.2024, to substantiate the fact that the defacto complainant suffered a hemorrhage, a depressed fracture of the parietal bone, and other serious injuries. It is reported that the defacto complainant’s condition is critical. The petitioners' custodial interrogation is and is to be The necessary, recovery effected. investigation in the case is only at the preliminary stage. If the petitioner is let off on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. 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: **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 B.A.No.1265 of 2024 ## -:5:- 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; B.A.No.1265 of 2024 ## -:6:- (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 B.A.No.1265 of 2024 ## -:7:- 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 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 accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 9. On an anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, especially after going through the treatment certificate of the injured, I am prima facie ## B.A.No.1265 of 2024 ## -:8:- satisfied of the accusations levelled against the petitioner. On comprehending the seriousness, gravity, and nature of the offences alleged against the petitioner, that the petitioner’s custodial interrogation is necessary, that the recovery is to be effected, and that the investigation is in the preliminary stage, I am of the definite view that the petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, 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 surrender 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 move application for bail, the jurisdictional Court shall, untrammelled by B.A.No.1265 of 2024 ## -:9:- 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 petitioner as if no order has been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** mtk/ 23.02.2024