Ambareesh P D and Sumesh Thathupppara alias Sumesh T B v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946** ## **BAIL APPL. NO. 4528 OF 2024** **CRIME NO.292/2024 OF Kelakom Police Station, Kannur** **AGAINST THE ORDER/JUDGMENT DATED 17.05.2024 IN CRMC NO.898 OF 2024 OF DISTRICT COURT & SESSIONS COURT,THALASSERY PETITIONER/S:** **1 AMBAREESH P D AGED 40 YEARS S/O DAMODHARAN P R, PUTHUPARAMBIL HOUSE, PARATHODE, KELAKOM, CHETTIYAMPARAMBAMBA P O, KANNUR, PIN - 670674** **2 SUMESH THATHUPPARA ALIAS SUMESH T B AGED 45 YEARS S/O BHASKARAN THATHUPARA, "THATHUPARA", KELAKOM, CHETTIYAMPARAMBAMBA P O, KANNUR, PIN - 670674** **BY ADVS. ELIZEBATH GEORGE EMMANUEL CYRIAC CYRIAC KURIAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** ## **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 4528 OF 2024 2 ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 2 in Crime No.292/2024 of the Kelakom Police Station, Kannur, registered against the accused (eight in number), for allegedly committing the offences punishable under Sections 143, 147, 148, 452, 341, 324, 326, and 427 r/w Section 149 of the Indian Penal Code (in short, 'IPC'). 3. The crux of the prosecution allegation is that: on 05.05.2024, at around 21 hours, the accused, in prosecution of their common intention, trespassed into the house of the defacto complainant and dragged him out of his house and attacked him with wooden sticks and caused him grievous injuries. Thus, the accused have committed the above offences. 4. Heard; Sri.Elizebath George Mecheril, the BAIL APPL. NO. 4528 OF 2024 3 learned counsel appearing for the petitioners and Sri.C.S.Hrithwik, the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. There is no material to substantiate that it was the petitioners who inflicted grievous injuries on the defacto complainant. Annexures A3 and A4 FIRs have been registered in connection with the same incident against the defacto complainant which shows the falsity in the crime. In any given case, the petitioners' custodial interrogation is not necessary and no recovery is to be effected. The petitioners are willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that the accused had trespassed into the house of the defacto complainant, dragged him out and brutally assaulted him causing grievous injuries to him and another person. He made BAIL APPL. NO. 4528 OF 2024 4 available the accident register cum wound certificate dated 21.05.2024 issued by a Doctor in favour of the defacto complainant and the other injured to substantiate that both the injured had suffered fractures on different parts of the body. He stated that there are specific overt acts alleged against the petitioners and incriminating materials to show their involvement in the crime. The investigation is in progress. If the petitioners are granted an order of pre-arrest bail, it would hamper the investigation of the case. Hence, the application may be dismissed. Moreover, the petitioners had moved a similar application before the Court of Session, Thalassery, which was dismissed by Annexure A1 order finding the complicity of the petitioners in the crime. 7. The prosecution allegation against the petitioners is that, they trespassed into the house of the defacto complainant and hit him and his friend with a wooden stick and they suffered fractures on different parts of the body. The said allegation stands prima facie corroborated by the accident register cum wound BAIL APPL. NO. 4528 OF 2024 5 certificate. However, that is a matter to be decided and investigated 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 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 understood to have held that the Court shall not BAIL APPL. NO. 4528 OF 2024 6 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. 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 petitioners, that the allegations stand prima facie corroborated by the BAIL APPL. NO. 4528 OF 2024 7 accident register cum wound certificate of the injured which shows that they suffered grievous injuries, that the petitioners' custodial interrogation is necessary and recovery is to be effected, I am convinced that the petitioners have not made out any exceptional ground 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/10.06.2024 BAIL APPL. NO. 4528 OF 2024 8 ## **APPENDIX OF BAIL APPL. 4528/2024** ## **PETITIONER ANNEXURES** |**Annexure A1**|**TRUE COPY OF THE ORDER IN CRL.MC**| |---|---| ||**898/2024 DATED 17.05.2024 DISMISSING THE**| ||**ANTICIPATORY BAIL OF THE PETITIONERS**| |**Annexure A2**|**TRUE COPY OF THE FIR NO.292 OF 2024**| ||**DATED 06.05.2024 OF KELAKOM POLICE**| ||**STATION**| |**Annexure A3**|**TRUE COPY OF THE FIR NO. 290/2024 BY**| ||**KELAKOM POLICE STATION DATED 05-05-24**| |**Annexure A4**|**TRUE COPY OF THE FIR NO. 291/2024 BY**| ||**KELAKOM POLICE STATION DATED 06-05-24**| |**Annexure A5**|**TRUE COPY OF THE AFFIDAVIT DATED 13-05-**| ||**2023**|