Adwaith J.R v. State of Kerala and The Sub Inspector of Police, Kazhakkuttom Police Station

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 11[TH] DAY OF APRIL 2024 / 22ND CHAITHRA, 1946 ``` ## `BAIL APPL. NO. 2905 OF 2024` ## `CRIME NO.306/2024 OF KAZHAKKUTTOM POLICE STATION, THIRUVANANTHAPURAM` ## `PETITIONER:` ``` ADWAITH J.R AGED 19 YEARS , S/O JOY SUNDER, RESIDING AT VARUVILA, S.N NAGAR, KULATHOOR THIRUVANANTHAPURAM, PIN – 695132 ``` ``` BY ADVS.BHARATH V GOPAL THEJAN RAJ ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, PIN – 682031 2THE SUB INSPECTOR OF POLICE KAZHAKOOTAM POLICE STATION, THIRUVANANTHAPURAM., PIN – 695022 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.2905/2024_ _-:2:-_ _Dated this the 11[th] day of April, 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 seventh accused in Crime No.306/2024 of the Kazhakkuttom Police Station, Thiruvananthapuram, registered against the accused (seven in number) for allegedly committing the offences punishable under Sections 367, 395, 506, 323, 324 & 326 of the Indian Penal Code, 1860. 3. The essence of the prosecution case, is that: on 02.03.2024, at about 10.30 hours, the accused Nos.1 to 3, in furtherance of their common intention, forcefully took the de-facto complainant in a car, to the Kazhakkuttom Government College, and all the accused together attacked with dangerous weapons.. The accused Nos.1 to 6 hit him all over his body, using _B.A.No.2905/2024_ _-:3:-_ aluminium rods, and the seventh accused hit him with a nunchaku on his face and he lost two teeth and suffered other injuries. The third accused threatened the de-facto complainant, and robbed his mobile phone and ATM card and, subsequently, withdrew Rs.2,000/from his bank account. Thus, the accused have committed the above offences. 4. Heard; Sri. Bharath V Gopal, the learned counsel appearing for the petitioner and Smt.Neema T.V., 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. He has been falsely implicated in the crime. A reading of Annexures-A3 & A4 would show that there is a previous animosity between the petitioner and the de-facto complainant. It is only to wreak vengeance on the petitioner, the de-facto complainant has deliberately alleged that the _B.A.No.2905/2024_ _-:4:-_ petitioner hit him with a nunchaku on his face and caused grievous injuries to him. In any given case, 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 opposed the application. She submitted that there is a specific overt act alleged against the petitioner for having hit the de-facto complainant with a nunchaku on his face, and he lost two teeth in the incident and also suffered grievous injuries. A reading of the FIR would substantiate that there is a specific overt act alleged against the petitioner. 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 with the investigation. Hence, the application may be dismissed. 7. On an evaluation of Annexure-A1 First _B.A.No.2905/2024_ _-:5:-_ Information Report, it can be gathered that there is a specific overt act alleged against the petitioner for having hit the de-facto complainant with a nunchaku on his face, and he lost two teeth and suffered grievous injuries. 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 pre-arrest bail being an extra ordinary privilege, should be granted only in 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. 9. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, _B.A.No.2905/2024_ _-:6:-_ ## after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “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 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). 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 _B.A.No.2905/2024_ _-:7:-_ 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. ….. ……” 11. 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 leveled against the petitioner, that the petitioner’s custodial interrogation is necessary, that the recovery is to be effected, and that the investigation in the case is only at a nascent stage, 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. Consequently, the bail application is dismissed. Nonetheless, I direct that, if _B.A.No.2905/2024_ _-:8:-_ 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/11.04.24 //True copy// P.A. To Judge