Anoop Khan and Aneesa v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 1943 OF 2024 ``` ``` CRIME NO.336/2024 OF KOTTARAKKARA POLICE STATION, KOLLAM ``` ## `PETITIONERS:` ``` 1ANOOP KHAN AGED 27 YEARS ANEESH MANSIL, THALACHIRA, THALACHIRA MURI, CHAKKUVARAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT., PIN – 691506 2ANEESA AGED 54 YEARS ANEESH MANSIL, THALACHIRA, THALACHIRA MURI, CHAKKUVARAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT., PIN – 691506 BY ADVS.SWAPNA VIJAYAN K.V.ANIL KUMAR RADHIKA S.ANIL ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.1943/2024_ _-:2:-_ Dated this the 25[th] day of March, 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 petitioners are the accused Nos.1 & 3 in Crime No.336/2024 of Kottarakkara Police Station, Kollam, registered against the accused (three in number), for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324, 308 & 506 read with Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The gravamen of the prosecution case is that: the third accused is the wife of the de-facto complainant. The accused Nos.1 & 2 are their sons born in their wedlock. On 14.02.2024, at around 11.00 hours, while the de-facto complainant was sitting in the _B.A.No.1943/2024_ _-:3:-_ veranda of his house, the first accused threw chilly powder on his face and, thereafter, the second accused put a towel around his neck and dragged him into the front room of his house, and then the first accused kicked him on his hips and attempted to attack him with a piece of window glass on his chest. It is only because the de-facto complainant warded off the attack, he did not lose his life. However, he sustained an injury on his left hand. On seeing the above attack, the third accused also intervened. They uttered abusive words at the de-facto complainant. Thus, the accused have committed the above offences. 4. Heard: Sri. K.V. Anil Kumar, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of _B.A.No.1943/2024_ _-:4:-_ the accusations levelled against them. A reading of Annexure-A First Information Report [FIR] would substantiate that the offence under Section 308 of the IPC will not be attracted. There is no specific overt act alleged against the petitioners. Moreover, the incident is a family dispute between the accused and the de-facto complainant, who is the father of the accused Nos. 1 & 2. In any given case, the petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She made available the accident register-cum-wound certificate of the injured to substantiate the fact that he suffered three incised wounds and 20 sutures had to be put on the de-facto complainant to stop the bleeding. He submitted that the specific overt act alleged against the first accused _B.A.No.1943/2024_ _-:5:-_ is that he had kicked on the hips of the de-facto complainant and attempted to stab him with a glass piece. It is only because he evaded the attack, the de-facto complainant only suffered an incised wound on his hand as reflected in the wound certificate. It is submitted that, if the first petitioner/first accused is granted an order of pre-arrest bail, it would certainly sabotage the investigation and the recovery. Hence, the application may be dismissed. 7. On an evaluation of the materials on record, it can be gathered that there is a specific overt act alleged against the first petitioner/ first accused, who kicked the de-facto complainant and, thereafter, attempted to stab him with the broken glass piece. In the altercation, the de-facto complainant is seen to have suffered three incised wound and 20 sutures had to be put. Therefore, there is a specific overt act alleged against the first petitioner/first accused. _B.A.No.1943/2024_ _-:6:-_ However, on the evaluation of the materials, it is seen that there is no specific overt act alleged against the second petitioner/ third accused so as to attract the offence under Section 308 of the IPC. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, 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). xxx xxx xxx 24.We have already held that the power to grant anticipatory _B.A.No.1943/2024_ _-:7:-_ 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 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 _B.A.No.1943/2024_ _-:8:-_ 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, especially on comprehending the seriousness, gravity, and nature of the offences alleged against the first petitioner/first accused, which prima-facie stands corroborated by the accident register-cum-wound certificate of the de-facto complainant, and that the investigation is only at a nascent stage, that the first petitioner’s custodial interrogation is necessary and recovery is to be effected, I am convinced that the first petitioner has not made out any exceptional ground 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 to the first _B.A.No.1943/2024_ _-:9:-_ petitioner/first accused. On the contrary, the second petitioner is entitled to an order. In the result, - I) The application filed by the first petitioner is dismissed. II) The application filed by the second petitioner is allowed subject to the following conditions: - (i) The second petitioner is directed to surrender before the Investigating Officer within one week from today. - (ii) In the event of the second petitioner’s arrest, the Investigating Officer shall produce him before the jurisdictional court on the date of surrender itself. - (iii) On such production, the jurisdictional court shall release the second petitioner on bail on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; - (iv) The second petitioner shall co-operate with the _B.A.No.1943/2024_ ## _-:10:-_ investigation and make himself available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; - (v) The second petitioner shall not intimidate witnesses or interfere with the investigation in any manner; - (vi) The second petitioner shall not get involved in any other offence while he is on bail. - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect _B.A.No.1943/2024_ _-:11:-_ recoveries on the information, if any, given by the second petitioner even while the second petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. - (x) Needless to say, any observations made in this order is only for the purpose of deciding the application and the same shall not be construed as an expression on the merits of the case to be decided by the Courts. Sd/- ## **C.S.DIAS,JUDGE** DST/25.03.24 //True copy// P.A. To Judge