Baiju G v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 4802 OF 2024 ``` ``` CRIME NO.0641/2024 OF KUNNICODE POLICE STATION, KOLLAM ``` ## **`PETITIONER/ACCUSED:`** ``` BAIJU G, AGED 46 YEARS AGED 46 YEARS, S/O.GOPALAKRISHNAN, EDANIRAPPIL HOUSE,VTC VETTIKKAVALA, CHAKKUVARAKKAL P.O,KOLLAM, PIN - 691508 ``` ``` BY ADV RESMI A. ``` ## **`RESPONDENT:`** - **`1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,HOME DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001`** - **`2 STATION HOUSE OFFICER, KUNNIKODE POLICE STATION,KUNNIKODE, KOLLAM, PIN – 691508`** ## **`SR.PUBLIC PROSECUTOR SMT.SEETHA S.`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.4802 of 2024 -:2:- Dated this the 26[th] day of July, 2024 ## **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.641/2024 of the Kunnicode Police Station, Kollam, which is registered against him for allegedly committing the offences punishable under Sections 294(b), 447, 323, 324, 506 and 308 of the Indian Penal Code (in short, IPC). 3. The gist of the prosecution case is that: on 03.06.2024, while the de facto complainant was waiting near the bus stand, the accused wrongfully restrained him and attacked him with an iron rod and he suffered serious injuries. Thus, the accused has B.A.No.4802 of 2024 -:3:- committed the above offences. 4. Heard; Smt.Resmi.A, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. The Investigating Officer has deliberately incorporated Section 308 of the IPC, to see that the petitioner is incarcerated. The petitioner is a law abiding citizen without any criminal antecedents. 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 opposed the application. She submitted that there are incriminating materials to substantiate the petitioner's involvement in the crime. She made available the Accident Register-cum-Wound Certificate of the injured dated B.A.No.4802 of 2024 -:4:- 3.6.2024 issued by the Taluk Headquarters Hospital, Punalur, to substantiate the fact that the injured has suffered a deep lacerated wound of 4x1x1 cm on the rear side of his head, multiple abrasions and swelling on different parts of his body. She stated that the petitioner’s custodial interrogation is necessary and recovery is to be effected for the full fledged investigation of the crime. If the petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 7. The allegation against the petitioner is that, he wrongfully restrained the de facto complainant and attacked him with an iron rod and inflicted grievous injuries on him. The said allegation prima facie stands corroborated by the treatment record of the injured referred to above. However, these are matters that need to be investigated and ultimately decided at the B.A.No.4802 of 2024 -:5:- 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 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 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 B.A.No.4802 of 2024 -:6:- 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 to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. On an overall consideration of the facts, the B.A.No.4802 of 2024 -:7:- rival submissions made across the Bar and the materials placed on record, particularly on considering that there are prima facie materials to substantiate the petitioner’s involvement in the crime, the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not convinced that the petitioner has made out any satisfactory ground to invoke the discretionary 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. 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 B.A.No.4802 of 2024 -:8:- 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** `rmm26/7/20` 24