BA No.1701 of 2024

1 BA No.1701 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 ``` ## **`BAIL APPL. NO. 1701 OF 2024`** ``` CRIME NO.46/2024 OF Kenichira Police Station, Wayanad ``` ## **`PETITIONER/S:`** - **`1 SHAJI K.G. ,AGED 50 YEARS,S/O GOVINDAN, KALIYARTHOTTATHIL HOUSE, ATHIRATTUKUNNU POST, POOTHADI GRAMA PANCHAYATH, IRULAM VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT., PIN - 673579`** - **`2 SHAIJESH,AGED 36 YEARS,S/O SHAJI, EEDATHIL HOUSE, ATHIRATTUKUNNU POST,POOTHADI GRAMA PANCHAYATH, IRULAM VILLAGE, SULTHAN BATHERY TALUK,WAYANAD DISTRICT., PIN - 673579`** - **`3 AJESH K.S. ,AGED 39 YEARS,S/O SEKHARAN, KAKKUSSERIYIL HOUSE,ATHIRATTUKUNNU POST, POOTHADI GRAMA PANCHAYATH, IRULAM VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT., PIN - 673579`** - **`4 SHIJUMON E.G.,AGED 41 YEARS,S/O GAJENDRAN, IDATHUMPADIYIL HOUSE,ATHIRATTUKUNNU POST, POOTHADI GRAMA PANCHAYATH, IRULAM VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT., PIN - 673579`** ``` BY ADVS. ``` ``` P.CHANDY JOSEPH ``` - **`C.K.VIDYASAGAR`** ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031`** - **`2 STATION HOUSE OFFICER,KENICHIRA POLICE STATION,WAYANAD DISTRICT, PIN - 673596`** ``` PP Smt Shynimol V.O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1701 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.1701 of 2024** ## **-----------------------------------** ## **Dated this the 26[th] day of March, 2024** ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973 (‘Code’ for short) for an order of pre-arrest bail. 2. The petitioners are the accused 1 to 4 in crime No.46/2024 of the Kenichira Police Station, Wayanad, registered against them for allegedly committing the offences punishable under Secs 341 and 323 read with Sec.34 of the Indian Penal Code ( for short, IPC). Subsequently, as per an additional report, Secs 325 and 307 of the IPC have been incorporated. 3 BA No.1701 of 2024 3. The gravamen of the prosecution allegation is that: on 26.1.2024, at around 2.30 hours, the de facto complainant’s elder brother named, Manoj had hired the jeep of the first accused to drop him and the de facto complainant ( ‘informant’ in short) at the Irulam church. The first accused demanded Rs.150/- towards taxi charges, which Manoj agreed to pay. However, when they reached their destination, the first accused demanded Rs.200/- as the fare, which Manoj refused to pay. Immediately, the first accused called the accused 2 to 4 to the spot and all four of them assaulted the informant and Manoj with their hands and legs. The accused pushed down Manoj to the ground and kicked him on his abdomen, who turned unconscious. Manoj was rushed to the Shanta Hospital. On the following day, he was taken to the Pulpally Hospital. Since Manoj had severe pain in his abdomen, he was shifted to the MES Hospital, Sulthan Bathery. The doctor at the said hospital, referred Manoj to 4 BA No.1701 of 2024 the Medical College Hospital, Kozhikode, where he was treated as inpatient. The incident occurred only because Manoj had failed to pay the amount demanded by the first accused. The informant can identify the accused. 4. Heard; Sri.C.K Vidyasagar, the learned counsel appearing for the petitioners and Smt.Shynimol V.O, the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. In fact, the petitioners were office bearers of the festival celebration committee of Sree Porkkali Devi Temple, Thoothileri. The informant and Manoj are North-Indians, who were conducting a Pansupari shop at the festival ground. Around 1.30 a.m on 26.1.2024, they wound up their business and hired the jeep of the first petitioner for Rs.200/-, to be dropped at Irulam church. The government approved taxi 5 BA No.1701 of 2024 charges is approximately Rs.250/-. The informant and Manoj were inebriated. When they reached the destination, they refused to pay the agreed fare. Then a heated exchange took place between the first petitioner, the informant and Manoj. Manoj immediately slapped and kicked the first petitioner. He also took out a knife and threatened to stab the first petitioner. At this time, the petitioners 2 to 4 reached the scene of occurrence and pacified the first petitioner, the informant and Manoj. Accordingly, Manoj paid the balance amount of Rs.100/- and the dispute was settled. Yet, subsequently, the present crime has been registered. Initially, only the offences under Secs. 341 and 323 read with Sec.34 of the IPC were incorporated. But, later, an additional report was filed and the offences under Secs. 325 and 307 of the IPC have been incorporated. Even though the first petitioner had suffered an injury, he did not lodge a complaint fearing the stigma. The petitioners are law abiding citizens and they have no criminal 6 BA No.1701 of 2024 antecedents. The petitioners’ custodial interrogation is not necessary and no recovery is to be effected. The petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted the petitioners had, in furtherance of their common intention, assaulted the informant and Manoj, and Manoj suffered serious injuries. She made available the treatment certificate of Manoj issued by the MES Mission Hospital, Sulthan Bathery dated 7.2.2024 and the discharge certificate issued by the Medical College Hospital, Kozhikode dated 12.3.2024. She submitted that Manoj had suffered serious injuries on his abdomen and was treated as an inpatient at the Medical College Hospital, Kozhikode for eight days. He had to undergo a surgery. The petitioners had assaulted Manoj with a mens rea to cause his death. It was in the above circumstances, the Investigating Officer has incorporated Sec.307 of the IPC. The petitioners’ custodial 7 BA No.1701 of 2024 interrogation is necessary. If the petitioners are granted an order of pre-arrest bail, it would sabotage the full and proper investigation of the crime. By Annexure-7 order, the learned Sessions Judge, Kalpetta, has dismissed the application filed by the petitioners for a similar relief, on the specific finding that the petitioners’ custodial interrogation is necessary. Therefore, the present application may be dismissed. 7. A reading of Annexure-2 first information statement would demonstrate that Manoj had hired the jeep of the first petitioner/first accused, to drop him and the informant at the Irulam church for a fare of Rs.150/-. After the first petitioner dropped them at the destination, he demanded an additional amount of Rs.50/-, which Manoj refused to pay. Consequently, an altercation took place between them, and the first petitioner called the petitioners 2 to 4 to the scene of occurrence, and all four of them assaulted the informant and Manoj. In the altercation, Manoj suffered serious injuries to 8 BA No.1701 of 2024 his abdomen and was initially treated at the Shantha Hospital, then at Pulpally Hospital, and at the MES Mission Hospital, Sulthan Bathery. 8. It is pertinent to note that in the treatment certificate dated 7.2.2024 issued by the MES Hospital, it is reported by the doctor that Manoj is a twenty four year patient and was assaulted by a person on 25.1.2024 at around 2.00 a.m . The doctor referred Manoj to the Kozhikode Medical College Hospital, for further treatment. Accordingly, Manoj was taken to the Medical College Hospital, Kozhikode, and was treated as an inpatient there from 27.1.2024 till 4.2.2024. The discharge certificate issued by the Medical College Hospital shows that he had suffered an abdomen injury and had undergone laparotomy and a transverse loop colostomy on 28.1.2024. 9. On an evaluation of the certification made in the medical certificate issued by the MES Hospital, which is the 9 BA No.1701 of 2024 first information given by Manoj to the Doctor, he has clearly stated that he was only assaulted by one person. 10. On a consideration of the facts, the rival submissions made across the Bar and the materials placed on record, prima facie, it can be gathered that the root cause of the incident was the disagreement between the informant, Manoj and the first petitioner, regarding the taxi charges. The informant alleges that the first petitioner called the petitioners 2 to 4, who reached the scene of occurrence and jointly assaulted the informant and Manoj. On the contrary, the first petitioner states that Manoj assaulted him and, thereafter, the petitioners 2 to 4 went to the place of occurrence, pacified the parties and dispute was settled. 11. The clinching material at the first instance, is the statement given by Manoj to the doctor at the MES Mission Hospital, wherein he categorically stated in unequivocal terms that he was assaulted only by one person, that too on 10 BA No.1701 of 2024 25.1.2024 and not on 26.1.2024. The above material leads me to the prima facie opinion that only the first petitioner is involved in committing the offence under Sec.307 of the IPC and there is no other material to establish the involvement of the petitioners 2 to 4 in committing the offence under Sec.307 of the IPC. Thus, I hold that the petitioners 2 to 4 are entitled to an order of pre-arrest bail. Yet, taking into account the specific overt act alleged against the first petitioner, I am of the view that he is not entitled to an order of pre-arrest bail and his custodial interrogation is necessary. 12. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137], the Hon’ble Supreme Court, after referring to the earlier precedents on the point, has succinctly laid down the law 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 11 BA No.1701 of 2024 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 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 xxx xxx” ## 13. 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 12 BA No.1701 of 2024 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. 14. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, especially the treatment certificate issued by the MES Hospital, the findings rendered above, and on comprehending the nature, seriousness and gravity of the accusations levelled against the first petitioner, I am convinced that he has not made out any exceptional ground to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. On the contrary, as there is no specific overt act alleged against the petitioners 2 to 4/accused 2 to 4 with respect to the commission of offence punishable under Sec.307 of the IPC, I am convinced that they are entitled to an order of pre-arrest bail. In the result, 13 BA No.1701 of 2024 (I) The application filed by the first petitioner/ first accused is dismissed. Nonetheless, I direct that, if he surrenders before the Investigating Officer within one week from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the first accused moves an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If he does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the first accused as if no order has been passed in this case. (II) The application filed by the petitioners 2 to 4/accused 2 to 4 is allowed subject to the following conditions: i) The accused 2 to 4 are directed to surrender before the Investigating Officer within one week from today. 14 BA No.1701 of 2024 ii) In the event of the 2[nd] to 4[th] accused’s arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the accused 2 to 4 on bail on them executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; iv) The accused 2 to 4 shall co-operate with the investigation and make themselves available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; v). The accused 2 to 4 shall not intimidate witnesses or interfere with the investigation in any manner; vi). The accused 2 to 4 shall not get involved in any other offence while 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 15 BA No.1701 of 2024 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 recoveries on the information, if any, given by the accused 2 to 4 even while they are 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/- sks/25.3.2024 **C.S.DIAS, JUDGE**