Sumesh Kumar K S v. State of Kerala

1 BA No.713 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 ``` ## **`BAIL APPL. NO. 713 OF 2024`** ``` CRIME NO.25/2024 OF Idukki Police Station, Idukki ``` ## **`PETITIONER/S:`** ``` SUMESH KUMAR K S AGED 38 YEARS S/O. K J SREEDHARAN, KUNJUKUNNEL HOUSE, MANIYARANKUDY P.O., IDUKKI DISTRICT, PIN - 685602 BY ADVS. VISHAK.K.JOHNSON ATHULYA SEBASTIAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA (ON BEHALF OF STATION HOUSE OFFICER OF POLICE IDUKKI POLICE STATION), PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.SEETHA.S, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.713 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.713 of 2024** ## **-----------------------------------** ## **Dated this the 16[th] day of February, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, for an order of pre-arrest bail. 2. The petitioner is the second accused in Crime No.25/2024 of the Idukki Police Station, registered against the accused (two in number and eight identifiable persons), for allegedly committing the offences punishable under Sections 143, 145, 147, 294(b), 323, 332, 353 and 506 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 16.1.2024 at around 12.15 hours, a scuffle led by the first accused and ten other persons occurred at the place named, 3 BA No.713 of 2024 Vanjikavala. The Police on getting information attempted to drive away the first accused and the said persons. Then, the first accused abused the defacto complainant/Sub Inspector of Police, Murikkassery Police Station and hit him on his chest with hands, the second accused kicked the Civil Police Officer, named, Arun.A.P and the other accused (eight in number) threatened the defacto complainant. Thus, the accused have committed the above offences. 4. Heard Sri.Vishak Johnson.K, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure A1 FIR would substantiate that the same has been registered against the petitioner out of the influence of the defacto complainant. The defacto complainant is supporting another 4 BA No.713 of 2024 political party. It is out of the said animosity that the accused has been falsely implicated in the crime. The petitioner’s custodial interrogation is not necessary. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and co-operate with the investigation. Hence, the petitioner may be released on bail. 6. The learned Public Prosecutor seriously opposed the bail application. She contended that the petitioner along with the other accused had inflicted injuries on the defacto complainant and his colleague named, Arun A.P. She made available the accident register cum wound certificates dated 16.1.2024 to substantiate the fact that the defacto complainant had suffered an injury on his thigh and left upper chest and the CPO had suffered a contusion over right big toe and subungual hematoma. She contended that the petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is let off on bail, there is every likelihood of him 5 BA No.713 of 2024 tampering with the evidence. Hence the application may be dismissed. 7. The gist of the prosecution case is that the petitioner along with the other accused had an altercation with the defacto complainant and his colleague and both of them suffered injuries as evidenced by the accident register cum wound certificate. Under Sec.353 of the Indian Penal Code, only hurt or criminal force is necessary to attract the above offence. ## 8. 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 6 BA No.713 of 2024 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 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. 7 BA No.713 of 2024 **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. ## 9. 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 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. 10. On a consideration of the facts, materials placed on record, the rival submissions made across the Bar, and on comprehending the nature, seriousness and gravity of the 8 BA No.713 of 2024 offences alleged against the petitioner, particularly after going through the accident register cum wound certificate of the injured and that the petitioner’s custodial interrogation is necessary, I am of the definite view that the petitioner has not made any exceptional ground 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. 11. Nonetheless, I direct that, if the petitioner surrenders 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 moves 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 petitioner does not surrender before the Investigating Officer as directed above, the Investigating 9 BA No.713 of 2024 Officer shall be free to arrest the petitioner as if no order has been passed in this case. sd/- sks/16.2.2024 **C.S.DIAS, JUDGE**