Kerala High Court
Dhaneesh K.S vs State Of Kerala on 15 February, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
BAIL APPL. NO. 584 OF 2024
CRIME NO.3962/2023 OF PALLURUTHY POLICE STATION, ERNAKULAM
AGAINST THE ORDER/JUDGMENT CRMC 61/2024 OF DISTRICT COURT &
SESSIONS COURT, ERNAKULAM
PETITIONERS/ACCUSED 1 AND 2:
1 DHANEESH K.S,
AGED 37 YEARS
S/O SUDHEESAN, 19/1252,
KUNNATH VEEDU, PALLURUTHY,
SDPY ROAD, ERNAKULAM,
PIN - 682006
2 VINEETH N.U,
AGED 38 YEARS
S/O UNNI, NIKARTHIL HOUSE,
19/1900 D, SDPY ROAD,
ERNAKULAM, PIN - 682006
BY ADVS.
C.Y.VINOD KUMAR
C.ANILKUMAR (KALLESSERIL)
P.M.MANASH
RESPONDENTS/STATE:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 STATION HOUSE OFFICER,
PALLURUTHY POLICE STATION,
PALLURUTHY, ERNAKULAM, PIN - 682006
BY SR PP SMT SEETHA S
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.584 of 2024
-:2:-
ORDER
Dated this the 15th day of February, 2024
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 petitioners are the accused 1 and 2 in
Crime No.3962/2023 of the Palluruthy Police Station,
Ernakulam, registered against the accused for allegedly
committing the offences punishable under Sections 341,
323, 324 and 326 r/w Section 34 of the Indian Penal
Code.
3. The crux of the prosecution case is that: the
accused, in furtherance of their common intention to
inflict bodily injury on the injured and out of the previous
animosity, on 23.12.2023, at about 11.40 p.m, had
wrongfully restrained the injured near a shop at a place
named Kacherypadi Junction, Palluruthy. The first
accused, using his hands and a stone, beat on the face of
the injured. The injured sustained a nasal bone fracture.
The second accused dragged the injured from his
motorcycle and beat him. Thus, the accused have
committed the above offences.
4. Heard; Sri. C.Y. Vinod Kumar, the learned
counsel appearing for the petitioners and Smt. Seetha.S,
the learned Senior Public Prosecutor appearing for the
respondents.
5. The learned counsel for the petitioners submitted
that the petitioners are totally innocent of the
accusations levelled against them. They have been
falsely implicated in the crime. Even if the allegations in
the FIR are taken on its face value, the same would not
attract Section 326 of the IPC. The said Section has been
deliberately incorporated to deny bail to the petitioners.
A reading of the wound certificate would substantiate
that the injured had not mentioned the weapon used by
the accused. This shows the falsity in the crime. At any
rate, the petitioners' custodial interrogation is not
necessary, and no recovery is to be effected. The
petitioners are willing to abide by any condition that may
be imposed by this Court and cooperate with the
investigation. Hence, the application may be allowed.
6. The learned Public Prosecutor seriously opposed
the application. She contended that the injured had
suffered a fracture on the orbit with a defect in the right
orbital floor, which was managed conservatively. She
handed over the Accident Register-Cum-Wound
Certificate as well as the medical certificate of the
injured to substantiate the above assertion. She
contended that the petitioners' custodial interrogation is
necessary, and recovery is to be effected. The
investigation in the case is only at the nascent stage. If
the petitioners are granted an order of pre-arrest bail, it
would hamper with the investigation. Hence, the
application may be dismissed.
7. The prosecution case is that the petitioners, out
of their previous animosity, allegedly hit the injured on
his nose with a weapon, and he sustained a fracture of
his nasal bone. Thereafter, the second accused dragged
the injured and assaulted him. The Accident Register-
Cum-Wound Certificate and the medical certificates of
the injured issued by the Lisie Hospital, Ernakulam,
dated 10.01.2024, substantiate that the injured had
suffered a fracture of the orbit with a defect in the right
orbital floor. The petitioners had moved the Court of
Session for similar relief, but their application was
dismissed by Annexure A1 order on the specific finding
that there are specific overt acts alleged against the
petitioners, that the petitioners' have criminal
antecedents, that their custodial interrogation is
necessary, and that the recovery is to be effected.
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 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.
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 accusation levelled against the
applicant is only to enrope him in the crime and would
misuse his liberty.
10. On an anxious consideration to the facts, the
materials placed on record, the rival submissions made
across the Bar, especially after going through the
Accident Register-Cum-Wound Certificate of the injured
and the medical certificate of the injured, I am prima
facie satisfied that the accusations are correct. On
comprehending the seriousness, gravity, and nature of
the offences alleged against the petitioners, that the
petitioners' 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
petitioners have 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.
11. Nonetheless, I direct that, if the petitioners
surrender before the Investigating Officer within 10 days
from today, they shall be interrogated and, thereafter, be
produced before the jurisdictional Court on the date of
surrender itself. Then, if the petitioners move
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 petitioners do not surrender before the
Investigating Officer as directed above, the Investigating
Officer shall be free to arrest the petitioners as if no
order has been passed in this case.
Sd/-
C.S.DIAS,JUDGE
mtk/ 15.02.2024
APPENDIX OF BAIL APPL. 584/2024
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE ORDER DATED 11/1/24 IN
CRL. MC NO. 61/24 OF THE HON'BLE SESSIONS
COURT, ERNAKULAM
