Bail Application No. 1674 of 2024 (Babu and Sunil Kumar 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. 1674 OF 2024 ``` ``` CRIME NO.203/2024 OF SREEKARIYAM POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONERS / ACCUSED:`** - **`1 BABU, AGED 60 YEARS KAROTTUVILA PUTHENVEEDU, CHERUVAKKAL, SREEKARYAM PO, THIRUVANANTHAPURAM, PIN - 695017`** - **`2 SUNIL KUMAR, AGED 57 YEARS KAROTTUVILA PUTHENVEEDU, CHERUVAKKAL, SREEKARYAM P.O, THIRUVANANTHAPURAM, PIN - 695017 BY ADVS. MUHAMMAD JASHEEN J. SAYED MANSOOR BAFAKHY THANGAL`** ## **`RESPONDENT/PETITIONER:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV SMT. SEETHA S. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **2** **BAIL APPL. NO. 1674 OF 2024** ## **C. S. DIAS, J.** **-------------------------------------------------------B.A. No. 1674 OF 2024 ------------------------------------------------------Dated this the 19[th] 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 and 2 in Crime No.203/2024 of the Sreekariyam Police Station, Thiruvananthapuram, registered against them for allegedly committing the offences punishable under Sections 452, 294(b), 323, 326 and 506 read with Section 34 of the Indian Penal Code, 1860. 3. The crux of the prosecution allegation is that: on 17.02.2024 at around 23.30 hours, the accused in furtherance of their common intention had verbally **3** **BAIL APPL. NO. 1674 OF 2024** abused the defacto complainant and the first accused named Sunil Kumar had encroached into the sit out of the defacto complainant’s house and hit the defacto complainant with a torch and fractured her fingers. The second accused had verbally abused the defacto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri. Muhammad Jasheen J., the learned counsel appearing for the petitioners and Smt. Seetha S. 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. A reading of the First Information Report and the First Information Statement would substantiate that the offence under Section 326 IPC will not be attracted. The said offence **4** **BAIL APPL. NO. 1674 OF 2024** has been incorporated only for the purpose of denying bail to the petitioners. The petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners are entitled for an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that it was the second petitioner/first accused, who hit the defacto complainant with a torch and the defacto complainant suffered a fracture on the base of her left ring finger. She made available the Accident Register cum Wound Certificate dated 18.02.2024 issued by the Medical College Hospital, Thiruvananthapuram to substantiate her assertions. She submitted that the custodial interrogation of the second petitioner/first accused is necessary and recovery is to be effected. If the second petitioner/first accused is granted an order of pre-arrest **5** **BAIL APPL. NO. 1674 OF 2024** bail, it would sabotage the entire investigation. Nonetheless, she conceded to the fact that there is no specific overt act alleged against the first petitioner/ second accused/Babu with regard to committing the offence under Section 326 IPC. Hence, she prayed that the application may be dismissed. 7. The prosecution allegation against the accused is that, the accused, in furtherance of their common intention, had trespassed into the house of the defacto complainant and the first accused hit the defacto complaint with the torch and she suffered a fracture in her left ring finger. 8. 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: **6** **BAIL APPL. NO. 1674 OF 2024** “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 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 **7** **BAIL APPL. NO. 1674 OF 2024** 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”. 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. **8** **BAIL APPL. NO. 1674 OF 2024** 10. On an overall consideration of the facts, the rival submissions made across the Bar and materials placed on record, especially after going through the Accident Register cum Wound Certificate of the injured referred to above, and on comprehending the nature, seriousness and gravity of the accusations levelled against the second petitioner/first accused, that his custodial interrogation is necessary and recovery is to be effected, I am convinced that the second petitioner/first accused has not made out 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 to the second petitioner/first accused. Nonetheless, taking into account that there is no specific overt act alleged against the first petitioner/second accused, I hod that he is entitled for an order of pre-arrest bail. **9** **BAIL APPL. NO. 1674 OF 2024** In the result, I. The application filed by the second petitioner/ first accused is dismissed. Nonetheless, I direct that, if the second petitioner/ first accused surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the second petitioner/ first accused moves application for bail, the jurisdictional Court shall consider the bail application on its merits. If the second petitioner/ first accused does not surrender before the as Investigating Officer directed above, the Investigating Officer shall be free to arrest the second petitioner/ first accused as if no order has been passed in this case. **10** **BAIL APPL. NO. 1674 OF 2024** II. The application filed by the first petitioner/second accused/Babu is allowed, subject to the following conditions: i) The first petitioner/second accused is directed to surrender before the Investigating Officer within ten days from today; ii) In the event of the first petitioner/second accused’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 first petitioner/second accused on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) each, with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; **11** **BAIL APPL. NO. 1674 OF 2024** iv) The first petitioner/second accused shall cooperate with the investigation and make himself available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; v) The first petitioner/second accused shall not intimidate witnesses or interfere with the investigation in any manner; vi) The first petitioner/second accused 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 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; **12** **BAIL APPL. NO. 1674 OF 2024** 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 first petitioner/second accused even while the first petitioner/second accused 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]** . **Sd/C.S.DIAS JUDGE** BR **13** **BAIL APPL. NO. 1674 OF 2024** ## **`APPENDIX OF BAIL APPL. 1674/2024`** ``` PETITIONER’S ANNEXURES Annexure A1TRUE COPY OF FIR ``` ``` RESPONDENT’S ANNEXURES: NIL ```