UNAIF v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945** ## **BAIL APPL. NO. 878 OF 2024** **CRIME NO.18/2024 OF PANAMARAM POLICE STATION, WAYANAD** **PETITIONER/ACCUSED NO.1:** **UNAIF, AGED 38 YEARS S/O. ANTHRU, PADYAN HOUSE, ANCHUKUNNU P.O., ANCHUKUNNU VILLAGE, MANANTHAVADY TALUK, WAYANAD DIST, PIN - 670645** **BY ADV CELINE JOSEPH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.878 OF 2024** **2** ## **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 petitioner is the first accused in Crime No.18/2024 of the Panamaram Police Station, Wayanad, registered against the accused (8 in number) for allegedly committing the offences punishable under Sections 341, 324, 326, 427, 294(b) r/w. S. 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 08.01.2024 at around 21.30 hours, the accused in furtherance of their common intention and out of their previous animosity with the defacto-complainant, wrongfully restrained the defacto-complainant, pulled him out of his vehicle and one among them had voluntarily caused grievous hurt on the defacto-complainant by hitting him with a stone and he sustained a fracture. The first accused had hit the defacto-complainant on his head and face with a helmet. One **BAIL APPL.NO.878 OF 2024** **3** among the accused had also kicked him on his abdomen and abused him in filthy language. The accused also caused damage to the vehicle of the defacto-complainant causing him a loss of Rs.5,000/-. Thus, the accused have committed the above offences. 4. Heard; Smt. Celine Joseph, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner has been falsely implicated in the crime. A reading of the F.I.Statement would clearly reveal that the petitioner is in no way involved in the crime. It was the person who drove the motorcycle who hit the defacto-complainant with a helmet and the person who came in Etios car was the person who hit the defacto-complainant with a stone. In fact, the petitioner was only travelling in an Innova car. Therefore, by no stretch of imagination can the offence under Section 326 be attributed against the **BAIL APPL.NO.878 OF 2024** **4** petitioner. At any rate, the petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He made available the accident register cum wound certificate of the defacto-complainant/injured to substantiate the fact that the injured had stated that he was attacked by a group of persons on 08.01.2024 at 21.45 hours. The wound certificate would substantiate that the defactocomplainant had sustained a nasal bone fracture and was treated at the District Hospital, Mananthawady. He further submitted that the CCTV footages secured by the Investigating Officer has revealed that the petitioner is the person who hit the defacto-complainant with a stone. The investigation in the case is only at a nascent stage. The petitioner's custodial interrogation is necessary, and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. There is every likelihood of him intimidating **BAIL APPL.NO.878 OF 2024** **5** the witnesses and tampering with the evidence. Hence, the application may be dismissed. 7. The prosecution allegation is that the accused in furtherance of their common intention had assaulted the defacto-complainant, who sustained grievous injuries including a nasal bone fracture. The petitioner's contention is that he was not the person who hit the defactocomplainant either with the stone or with the helmet. The petitioner has no role in the crime and Section 326 IPC cannot be attributed against him. 8. In S **iddharam 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 careful use of their **BAIL APPL.NO.878 OF 2024** **6** 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 **BAIL APPL.NO.878 OF 2024** **7** 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. 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 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 accusations levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 10. After bestowing my anxious consideration to the facts, the materials placed on record and the rival **BAIL APPL.NO.878 OF 2024** **8** submissions made across the Bar, particularly the report of the Investigating Officer which states that the CCTV footages clearly establish that the petitioner had assaulted the defacto-complainant with a stone, which has resulted in the nasal bone fracture, I am prima facie 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 recovery is to be effected and the investigation is at a 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. 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 **BAIL APPL.NO.878 OF 2024** **9** 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 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** **shg**