BAIL APPL. NO. 2069 OF 2024

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 21[ST] DAY OF MARCH 2024 / 1ST CHAITHRA, 1946 BAIL APPL. NO. 2069 OF 2024 ``` ``` CRIME NO.172/2024 OF TOWN EAST POLICE STATION, THRISSUR AGAINST THE ORDER/JUDGMENT DATED 04.03.2024 IN CRMC NO.200 OF 2024 OF DISTRICT COURT & SESSIONS COURT,THRISSUR ``` ## **`PETITIONERS/ACCUSED NOS. 1 TO 4:`** - **`1 ALAN.K.ANSARI AGED 21 YEARS S/O. ANSARI.K.M, KOLAMBAN HOUSE, OLLUKARA, THRISSUR, PIN - 680655`** - **`2 HARIHARAN.C AGED 22 YEARS S/O. C.RADHAKRISHANAN, CHELAT HOUSE, AYYANATHOLE, THRISSUR, PIN - 680003`** - **`3 MOHAMED ALTHAF AGED 23 YEARS S/O. RAZAK.K.K. KATTUPARAMBIL HOUSE. OLLUKARA, THRISSUR, PIN - 680655`** - **`4 SIVAPRASAD AGED 22 YEARS S/O. MURALIDHARAN, VIYYOOKARAN HOUSE, KAINOOR, THRISSUR, PIN - 680014 BY ADVS. E.VIJIN KARTHIK JITHIN VARGHESE POOJA P.`** ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV SRI. C. S. HRITHWIK – SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 21.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **2** **BAIL APPL. NO. 2069 OF 2024** ## **C. S. DIAS, J.** **-------------------------------------------------------B.A. No. 2069 OF 2024 ------------------------------------------------------Dated this the 21[st] day of March, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, 'Code'), for an order of pre-arrest bail. 2. The petitioners are the accused 1 to 4 in Crime No.172/2024 of the Thrissur Town East Police Station, which is registered against them for allegedly committing the offences punishable under Sections 341, 323, 324, 326 and 294(b) read with Section 34 of the Indian Penal Code, 1860. 3. The gravamen of the prosecution case is that: on 26.01.2024, at around 00.30 hours, while accused 1 to 4 were travelling in a car bearing Regn. No. KL 08 BJ **3** **BAIL APPL. NO. 2069 OF 2024** 1205, their vehicle collided with a motor cycle bearing Regn. No. KL 08 AF 4264, which was ridden by the defacto complainant's wife's brother. Then, the defacto complainant questioned the accused for the rash and negligent driving. Immediately, the accused hit the defacto complainant with their hands, an iron wheel spanner and jacky liver, which resulted in a fracture to the defacto complainant's nose. Thus, the accused have committed the above offences. 4. Heard; Sri. E. Vijin Karthik, the learned counsel appearing for the petitioners and Sri. C. S. Hrithwik the learned Public Prosecutor. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. By no stretch of imagination can the four accused jointly assault the **4** **BAIL APPL. NO. 2069 OF 2024** defacto complainant, and cause a nasal bone fracture. The Investigating Officer has deliberately incorporated Section 326 IPC to deny bail to the petitioners. In any given case, the petitioners’ 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. He made available the Accident Register cum Wound Certificate of the defacto complainant dated 27.01.2024, issued by the Thrissur District Co-operative Hospital, to substantiate the fact that the defacto complainant suffered a nasal bone fracture. He submitted that the petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. **5** **BAIL APPL. NO. 2069 OF 2024** 7. 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: “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 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 **6** **BAIL APPL. NO. 2069 OF 2024** 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”. ## 8. 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 **7** **BAIL APPL. NO. 2069 OF 2024** 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. 9. On an anxious consideration of the facts, the rival submissions made across the Bar and materials placed on record, particularly the wound certificate of the injured and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioners, that the petitioners’ custodial interrogation is necessary and recovery is to be effected, I am convinced that the petitioners have 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. **8** **BAIL APPL. NO. 2069 OF 2024** Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within a week from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, untrammelled by any observation in this order, consider and dispose of the bail application on its merits preferably on the date of production itself. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. **Sd/C.S.DIAS JUDGE** BR **9** ## **BAIL APPL. NO. 2069 OF 2024** ## **`APPENDIX OF BAIL APPL. 2069/2024`** ``` PETITIONER’S ANNEXURES Annexure A1TRUE COPY OF THE ORDER DATED 4-03-2024 IN CRL.M.C. NO. 200/2024 ``` ``` RESPONDENT’S ANNEXURES: NIL ```