Amal S v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 5[TH] DAY OF JUNE 2024 / 15TH JYAISHTA, 1946** **BAIL APPL. NO. 3603 OF 2024** **CRIME NO.363/2024 OF Sooranadu Police Station, Kollam** ## **PETITIONER/S:** **AMAL S , AGED 18 YEARS S/O SURESHKUMAR. A, PUTHENPURA KIZHAKKATHIL,KAKKAKUNNU P.O, SOORANAD SOUTH, KOLLAM DISTRICT., PIN - 690522** **BY ADV P.V.DILEEP** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM., PIN - 682031** **2 THE STATION HOUSE OFFICER, SOORANAD POLICE STATION, SOORANAD .P.O, KOLLAM DISTRICT., PIN - 690522** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3603 OF 2024 2 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the 4[th] accused in Crime No.363/2024 of the Sooranad Police Station, Kollam, registered against the accused (four in number), for allegedly committing the offences punishable under Sections 323, 324, 294(b) and 427 r/w Section 34 of the Indian Penal Code. Subsequently, the offence under Section 326 of the IPC has been incorporated. 3. The essence of the prosecution case is that : on 18.03.2024 at around 22.30 hours, while the defacto complainant and his wife were traveling on a motor cycle, when they reached in front of the house of the 1[st] accused, there occurred an altercation between the 1[st] accused and the defacto complainant. Then, the accused 1 to 3 along with five BAIL APPL. NO. 3603 OF 2024 3 identifiable persons assembled and the 1[st] accused hurled abuses at the defacto complainant. Thereafter, he pulled down the defacto complainant from the motor cycle and assaulted him with an iron rod causing an injury on his head. The accused 1 to 3 also kicked him on his rear side. The 4[th] accused hit him with an iron rod on his face and he suffered a nasal bone fracture. The accused also caused damage to the motor cycle of the defacto complainant causing a loss of Rs.50,000/-. Thus, the accused have committed the above offence. 4. Heard; Sri.Dileep P.V., the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. A reading of Annexure-1 FIR would substantiate that there is no allegation that the BAIL APPL. NO. 3603 OF 2024 4 petitioner has committed the offence under Section 326 of the IPC. The said offence was subsequently incorporated based on the treatment certificate of the defacto complainant which by itself shows the falsity in the crime. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Moreover, the accused 1 and 3 have been granted an order of prearrest bail by this Court as per Annexure-5 order. Hence, the petitioner may be granted an order of prearrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to show the petitioner's overt act in the crime. It is specifically alleged in the FIR as well as the FIS that it was the petitioner who hit the defacto complainant with an iron rod on his face and he suffered a nasal bone fracture. She made available the treatment certificate of the injured issued by the Government Taluk Headquarters Hospital, Karunagappally dated BAIL APPL. NO. 3603 OF 2024 5 01.04.2024 to show that the defacto complainant has suffered a nasal bone fracture. She stated that the petitioner cannot seek parity with the accused 1 and 3 against whom there are no overt acts. The petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of prearrest bail, it would hamper the investigation of the case. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that, he hit the defacto complainant with an iron rod and suffered a nasal bone fracture. The said accusation stands prima facie corroborated by the treatment certificate issued by the Government Taluk Headquaters Hospital, Karunagappally. Nonetheless, that is a matter to be investigated and 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 BAIL APPL. NO. 3603 OF 2024 6 ## 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 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 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 BAIL APPL. NO. 3603 OF 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. xxx 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 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, particularly on comprehending the nature, gravity, and seriousness of BAIL APPL. NO. 3603 OF 2024 8 the accusations leveled against the petitioner, that there is a specific overt act alleged against the petitioner, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not satisfied that the petitioner has made out convincing 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** rkc/05.06.24 BAIL APPL. NO. 3603 OF 2024 9 ## **APPENDIX OF BAIL APPL. 3603/2024** ## **PETITIONER ANNEXURES** ## **Annexure-1** **THE TRUE COPY OF THE F.I.R IN CRIME NO. 363/2024 OF SOORANAD POLICE STATION IN KOLLAM DISTRICT.** **Annexure-2** **THE TRUE COPY OF THE WOUND CERTIFICATE SHOWING INJURIES SUSTAINED TO THE MOTHER OF THE 1ST ACCUSED ISSUED FROM THE THALUK HEAD QUARTERS HOSPITAL SASTHAMCOTTA DATED 18.03.2024 TIME SHOWING 10.52 P.M.** - **Annexure-3 THE TRUE COPY OF THE WOUND CERTIFICATE SHOWING INJURIES SUSTAINED TO THE FATHER OF 1ST ACCUSED, THE 3RD ACCUSED ISSUED FROM THE THALUK HEAD QUARTERS HOSPITAL SASTHAMCOTTA DATED 18.03.2024 TIME SHOWING 10.53 P.M.** **Annexure-4** - **THE TRUE COPY OF THE COMPLAINT GIVEN BY THE MOTHER OF 1ST ACCUSED BEFORE THE 2ND RESPONDENT POLICE STATION DATED 18.03.2024.** **Annexure-5 THE TRUE COPY OF JUDGEMENT IN B.A. NO. 2465/2024 OF THIS HONORABLE COURT DATED 03.04.2024.**