SUVEEN K v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 ``` ## **`BAIL APPL. NO. 964 OF 2024`** ``` CRIME NO.1624/2023 OF KANNUR TOWN, KANNUR AGAINST THE ORDER IN CRMC 78/2024 OF DISTRICT COURT & SESSIONS ``` ``` COURT,THALASSERY ``` ## **`PETITIONER/4TH ACCUSED:`** ``` SUVEEN K, AGED 38 YEARS S/O VENUGOPALAN, RESIDING AT PUTHIYARAMBATH HOUSE, PALLIMMOOLA, P O CHALAD, KANNUR DISTRICT, PIN - 670008 ``` ``` BY ADVS. I.V.PRAMOD AMRUTHA DIWAKAR SAIRA SOURAJ P. RESMI SAJEEVAN MEGHA G. ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.964 of 2024 2 ## **O R D E R** Dated this the 13[th] 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 4[th] accused in Crime No.1624/2023 of the Kannur Town Police Station, Kannur, registered against the accused (four in number) allegedly committing the offences punishable under Sections 365, 324 and 308 r/w 34 of the Indian Penal Code, 1860. 3. The crux of the prosecution case is that: on 24.12.2023 at about 12.30 p.m, the first accused and three others abducted the de facto complainant in a scooter, took him to a building under construction at Payyambalam, and assaulted him with a stone and a firebrick. Thereafter, they strangulated him by putting a B.A.No.964 of 2024 3 coir rope around his neck. The de facto complainant sustained grievous injuries. Thus, the accused have committed the above offences. 4. Heard; Sri. I.V.Pramod, the learned counsel appearing for the petitioner and Smt. Seetha. S, the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner is falsely implicated in the crime. Even if the allegations in Annexure A1 FIR are taken on its face value, this will not constitute the offences alleged against the petitioner. It is impossible for the accused to abduct the de facto complainant and take him on the same scooter. The petitioner’s custodial interrogation is not necessary. The petitioner is willing to abide by any condition that may be imposed by this Court. Hence, the application may be B.A.No.964 of 2024 4 dismissed. 6. The learned Public Prosecutor seriously opposed the application. She drew the attention of this Court to Annexure A1 FIR and submitted that there is a specific overt act alleged against the petitioner. The petitioner and accused 2 and 3, had abducted the de facto complainant along with the first accused and had taken the de facto complainant to a building under construction and assaulted him. The Accident RegisterCum-Wound Certificate tallies with the injuries sustained by the de facto complainant. The petitioner’s custodial interrogation is absolutely necessary, and recovery is to be effected. If the petitioner is let off on bail, it would hamper with the full and proper 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: B.A.No.964 of 2024 5 **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 B.A.No.964 of 2024 6 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 unnecessary to travel beyond it and subject the wide power and discretion conferred by B.A.No.964 of 2024 7 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 a consideration of the facts, the materials placed on record, and the rival submissions made across the bar, taking into account the nature, gravity, and seriousness of the offences alleged against the petitioner, that the petitioner’s custodial B.A.No.964 of 2024 8 interrogation is necessary, that the recovery is to be effected, and that the accused 1, 2 and 3 had surrendered before the Investigating Officer, and their arrests were recorded, and subsequently, they were released on bail. 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 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 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 B.A.No.964 of 2024 9 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/13.02.2024 B.A.No.964 of 2024 10 ## **`APPENDIX OF BAIL APPL. 840/2024`** ``` PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE FIR IN CRIME NO. 1052/2023 OF KUMBLA POLICE STATION KASARGOD DISTRICT Annexure A2TRUE COPY OF THE MEDICAL REPORTS AND XRAYS Annexure A3TRUE COPY OF THE INTIMATION REPORT OF THE HOSPITAL WHERE THE PETITIONER WAS ADMITTED ``` ``` Annexure A4 ``` ``` TRUE COPY OF THE COUNTER CASE FIR IN CRIME NUMBER 55/2024 DATED 19.01.2024 ```