Babu P.L. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945** **BAIL APPL. NO. 1308 OF 2024** **CRIME NO.713/2023 OF PERUMPETTY POLICE STATION, PATHANAMTHITTA** ## **PETITIONER/ACCUSED:** **BABU P.L, AGED 58 YEARS S/O LUKOSE,PULINCHUMOOTTIL HOUSE VAIPUR P.O., SASTHAMKOICKAL,KOTTANGAL, PATHANAMTHITTA,KERALA, PIN - 689588** **BY ADVS. VARGHESE C.KURIAKOSE AMRITHA.J KURUVILLA MATHEW VIPIN C. VARGHESE** ## **RESPONDENTS/STATE/INVESTIGATING OFFICER:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031** - **2 THE STATION HOUSE OFFICER, PERUMPETTY POLICE STATION,PATHANAMTHITTA DISTRICT, PIN - 689615** - **3 P.K.PRABHA,** **SUB INSPECTOR,OF POLICE, PERUMPETTY POLICE STATION,PATHANAMTHITTA DISTRICT, PIN - 689615** ## **OTHER PRESENT:** **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.03.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.1308 OF 2024** **2** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (‘Code’, for short), for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No.713/2023 of the Perumpetty Police Station, Pathanamthitta, registered against him for allegedly committing the offences punishable under Sections 294(b), 323, 332, 353 & 427 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 04.12.2023 while the Sub Inspector of Police (defactocomplainant) and two civil police officers attached to Perumpetty police station went to the residence of the accused, to investigate the complaint lodged by his estranged wife, the accused assaulted the defactocomplainant and the civil police officers (collectively referred to as 'injured') and voluntarily caused hurt to them, and deterred them from discharging their duties as public **BAIL APPL.NO.1308 OF 2024** **3** servants. The accused abused the injured, used criminal force, prevented and deterred the injured from discharging their public duty. Thus, the accused has committed the above offences. 4. Heard; Sri.Varghese C. Kuriakose, the learned counsel appearing for the petitioner and Smt. Shynimol V.O., the learned Public Prosecutor. 5. The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime under the influence of his estranged wife and her brother. Actually, the injured have caused grievous hurt to the petitioner. A reading of Annexure A2 FIR would substantiate the falsity in the present crime. In fact, the petitioner has been enlarged on bail in the false case foisted by his estranged wife. It is only as an arm twisting tactic that the Investigating Officer has registered the present crime. By no stretch of imagination can the petitioner cause hurt to three police officers who are **BAIL APPL.NO.1308 OF 2024** **4** younger to him. 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. She submitted that the petitioner has committed the above offences and deterred the injured from discharging their official duties. She made available the accident register cum wound certificate of the injured dated 04.12.2023 issued by the Taluk Headquarters Hospital, Ranni, to substantiate the fact that all the three injured have suffered injuries in the incident. The investigation is only at its preliminary stage and the petitioner's custodial interrogation is necessary for a proper and full investigation. If the petitioner is granted an order of pre-arrest bail, it would sabotage the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that, on the basis of a complaint lodged by the petitioner's estranged wife, the defacto-complainant and the other civil **BAIL APPL.NO.1308 OF 2024** **5** police officers had gone to the residence of the petitioner to investigate the complaint. Consequently, Annexure A3 FIR i.e crime No.715/2023 was registered on 04.12.2023 at 23.30 hours in connection with an incident that occurred on 02.12.2023 at 19.00 hours. It is alleged that, when the injured went to investigate Annexure A3 crime, the petitioner assaulted them and prevented them from discharging their duty. Accordingly, Annexure A2 FIR was registered by the defacto-complainant on 04.12.2023 at 19.00 hours in respect of an incident that occurred on 04.12.2023 at 11.05 hours. 8. A reading of the wound certificate of the three injured prima facie corroborates with the accusations levelled in Annexure A2 FIR. Therefore, the materials on record prima facie prove that the accusations attributed against the petitioner to be well-founded. 9. 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: **BAIL APPL.NO.1308 OF 2024** **6** “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). **==> picture [306 x 7] intentionally omitted <==** 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”. ## 10. 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 **BAIL APPL.NO.1308 OF 2024** **7** 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. 11. 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 petitioner, that the accident register cum wound certificate of the three injured prima facie prove that all the three injured have suffered injuries on 04.12.2023, that the petitioner’s custodial interrogation is necessary and that the investigation in the case is only at a nascent stage, I am convinced that the petitioner has not made out any exceptional 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. **BAIL APPL.NO.1308 OF 2024** **8** Nonetheless, I direct that, if the petitioner 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 petitioner moves an application for bail, the jurisdictional Court shall consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. Sd/- **C.S.DIAS** **JUDGE** **shg**