ADERSH L v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 4210 OF 2024` ``` CRIME NO.358/2024 OF SASTHAMCOTTA POLICE STATION, KOLLAM ``` ## `PETITIONER:` ``` ADERSH L AGED 21 YEARS S/O LALU, MADATHIL VADAKKATHIL, KOIVILA P.O, THEVALAKKARA VILLAGE, KARUNAGAPPALLY THALUK, KOLLAM DISTRICT., PIN – 690524 ``` ``` BY ADV P.V.DILEEP ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN – 682031 2THE STATION HOUSE OFFICER SASTHAMCOTTA POLICE STATION, SASTHAMCOTTA .P.O, KOLLAM DISTRICT., PIN – 690521 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.4210/2024_ _-:2:-_ _Dated this the 29[th] day of May, 2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.358/2024 of the Sasthamcotta Police Station, Kollam, registered against the accused (nine in number and 8 identifiable persons) for allegedly committing the offences punishable under Sections 143, 147, 148, 294(b), 324, 326 and 149 of the Indian Penal Code, 1860. 3. The essence of the prosecution case is that: on 28.02.2024, at around 15.45 hours, while the friend of the de-facto complainant was speaking on the mobile phone, the accused Nos.1 and 2 and 17 other identifiable persons, out of their previous animosity, _B.A.No.4210/2024_ _-:3:-_ formed an unlawful assembly and pelted stones on the friend of the de-facto complainant. In the incident, the de-facto complainant’s friend sustained injuries on his lip, and lost one of his tooth. Thus, the accused have committed the above offences. 4. Heard; Sri.Dileep. P.V, the learned counsel appearing for the petitioners and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure-1 First Information Report would show that there is no specific overt act alleged against the petitioner. By Annexure-2 order, this Court has granted an order of pre-arrest bail in favour of the accused 4 & 9. The petitioner is at par with the said accused. Therefore, the petitioner may be granted an order of pre-arrest bail. Moreover, the petitioner’s _B.A.No.4210/2024_ _-:4:-_ custodial is not and no interrogation necessary, recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that a specific overt act is alleged against the petitioner, who threw a stone at the de-facto complainant, and he lost a tooth in the incident. He made available the accident register-cum-wound certificate dated 28.02.2024 issued by the Taluk Headquarters Hospital, Sasthamcotta, to substantiate the fact that the de-facto complainant’s friend lost the upper central incisor. He stated that 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 certainly hamper the investigation. Hence, the application may be dismissed. 7. On an analysis of the materials on record, it _B.A.No.4210/2024_ _-:5:-_ can be seen that there is a specific overt act alleged against the petitioner who threw a stone at the de-facto complainant’s friend, and he allegedly lost his tooth, which stands corroborated by the accident register-cum-wound certificate. However, that is a matter of investigation and to finally be decided at the time of trial. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a _B.A.No.4210/2024_ _-:6:-_ person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). ## xxx xxx xxx 24.We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx” ## 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 _B.A.No.4210/2024_ _-:7:-_ 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. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary and 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 Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. _B.A.No.4210/2024_ _-:8:-_ 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 the petitioner moves an application for bail, the jurisdictional Court shall, consider the bail application on its merits. 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** DST/29.05.24 //True copy// P.A. To Judge