Anandu Prakash v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946 BAIL APPL. NO. 4828 OF 2024 ``` ``` CRIME NO.357/2024 OF KURUPPAMPADY POLICE STATION, ERNAKULAM ``` ## **`PETITIONER/ACCUSED:`** ``` ANANDU PRAKASH, AGED 23 YEARS S/O PRAKASH, PAREMALIL HOUSE, VENGOOR KARA, VENGOOR VILLAGE-683546 ``` ``` BY ADV K.S.ANEESH ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SRI C S HRITHWIK SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.4828 of 2024 -:2:- Dated this the 2[nd] day of August, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No. 357/2024 of the Kurumppumpady Police Station, Ernakulam, which is registered against the accused for allegedly committing the offences punishable under Sections 323, 324, 506 and 307 of the Indian Penal Code. 3. The essence of the prosecution case is that; on 13.04.2024, at around 18.30 hours, the accused, in furtherance of their common intention, had wrongfully restrained the husband of the defacto complainant, and with an intention to commit his murder, the first accused hit him on his head with a stone, and when he fell down, the first accused also stamped him and one Ajeesh, B.A.No.4828 of 2024 -:3:- Sarath, and Abhimanue. Thereafter, the first accused threw a beer bottle at Sarath, and it hit on his head. Then, the second accused also threatened the witnesses by swaying a beer bottle, and the first accused tried to attack Subin with the broken beer bottle. Later, the first accused stabbed on the neck of the husband of the defacto complainant, causing an injury of 7x2.5 cm. Thus, the accused have committed the above offences. 4. Heard; Sri.K.S. Aneesh, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik, the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. In fact, the petitioner and the defacto complainant are friends. It was on the misunderstanding that the said incident occurred. There is no material to substantiate that the petitioner has committed the offence under Section 307 of the IPC. The defacto complainant has not suffered any grievous injury, B.A.No.4828 of 2024 -:4:- as alleged by the prosecution. 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 seriously opposed the application. He submitted that the petitioner has committed a very serious crime by stabbing the husband of the defacto complainant on his neck with a beer bottle, and he suffered grievous injuries. He made available the accident register cum wound certificate of the defacto complainant issued by the Taluk Head Quarters Hospital, Perumbavoor, dated 13.04.2024, to substantiate the injury suffered by the defacto complainant. He stated that the petitioner’s custodial interrogation is necessary and recovery is to be effected for the proper and full investigation of the crime. If the petitioner is granted an order of pre-arrest bail, he would torpedo the investigation. Hence, the application may be dismissed. B.A.No.4828 of 2024 -:5:- 7. The prosecution allegation against the petitioner is that he, had first attacked the husband of the defacto complainant with a stone by hitting on his head. Subsequently, he also threw a beer bottle against the person named Sarath. Thereafter, he stabbed the husband of the defacto complainant on his neck, causing him a grievous injury. The said accusation, prima facie, stands corroborated by the treatment record referred to above. However, that is a matter to be investigated and ultimately decided at the time of trial. 8. 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 B.A.No.4828 of 2024 ## -:6:- 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 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 B.A.No.4828 of 2024 -:7:- 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. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness, and gravity of the accusations attributed against the petitioner, that there are prima facie materials to substantiate the petitioner's involvement in the crime, that the petitioner's custodial interrogation is necessary, and that the recovery is to be effected, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that B.A.No.4828 of 2024 -:8:- 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** mtk/02.08.24