Vinodkumar M v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, ``` ``` 1945 ``` ``` BAIL APPL. NO. 673 OF 2024 ``` ``` CRIME NO.1357/2023 OF PETTA POLICE STATION, ``` ``` THIRUVANANTHAPURAM ``` ## **`PETITIONER/ACCUSED:`** ``` VINODKUMAR M, AGED 36 YEARS S/O MOHANAN NAIR ,SHIVADEVANADHAM KAVINKULANGARA, KARIKKAKOM ,THIRUVANANTHAPURAM, PIN - 695021 ``` ## **`BY ADV K.PREMKRISHNA NAIR`** ## **`RESPONDENT/COMPLAINANT:`** ``` 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 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.673 of 2024 -:2:- ## **O R D E R** Dated this the 28[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 sole accused in Crime No.1357/2024 of the Pettah Police Station, Thiruvananthapuram, registered against him for allegedly committing the offences punishable under Sections 294(b), 341, 506, 427 and 326 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 26.11.2023 at about 9.00 p.m, the accused waylaid the de facto complainant who was travelling in a car and, assaulted him with a hammer. As a result, he lost a tooth. The accused also broke the glasses of the car, causing a loss of Rs.10,000/- to the de facto complainant. Thus, the B.A.No.673 of 2024 ## -:3:- accused has committed the above offences. 4. Heard; Sri. Prem Krishnan Nair, the learned counsel appearing for the petitioner and Smt. Seetha.S, the learned Senior 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. He has been falsely implicated in the crime. In fact, the de facto complainant was having an out of marriage relationship with the wife of the petitioner. As a result of the said relationship, the above crime has been falsely registered at the instance of the de facto complainant. At any rate, the petitioner's custodial interrogation is not necessary, and no 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 investigation in ## B.A.No.673 of 2024 ## -:4:- the case is only at the preliminary stage. The petitioners' custodial interrogation is necessary, and recovery is to be effected. She made available the Accident Register-Cum-Certificate of the defacto complainant/injured dated 26.11.2023 to substantiate the fact that the defacto complainant had lost his tooth in the assault at the hands of the petitioner. She submitted that if the petitioner is granted an order pre-arrest 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: **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 B.A.No.673 of 2024 ## -:5:- 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 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 B.A.No.673 of 2024 ## -:6:- 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** B.A.No.673 of 2024 ## -:7:- **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 of the facts, the materials placed on record, the rival submissions made across the Bar, especially after going through the Accident Register-Cum-Certificate of the de facto complainant, which shows that he suffered grievous injury, and on being prima-facie satisfied that the offences stand attracted that the investigation in the case is only at the preliminary stage, that the petitioner’s B.A.No.673 of 2024 -:8:- custodial interrogation is necessary, and that the recovery is to be effected, I am convinced 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. Resultantly, the bail application is dismissed Sd/- **C.S.DIAS,JUDGE** mtk/ 28.02.2024 B.A.No.673 of 2024 -:9:- ## **`APPENDIX OF BAIL APPL. 673/2024`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE A1 ``` ``` TRUE PHOTOSTAT COPY OF THE FIR BEARING NO.1357 OF 2023 REGISTERED BY PETTAH POLICE STATION, THIRUVANANTHAPURAM CITY, DTD. 7TH DAY OF DECEMBER 2023. ``` ## **`ANNEXURE A2`** ``` TRUE PHOTOSTAT COPY OF CRL.M.C NO. 3320 OF 2023 PASSED BY HONOURABLE SESSIONS COURT ,THIRUVANANTHAPURAM,DTD.10TH DAY OF JANUARY 2024 ```