Bail Application No. 1793 of 2024 (Goutham & others v. State of Kerala)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 22[ND] DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 BAIL APPL. NO. 1793 OF 2024 ``` ``` CRIME NO.134/2024 OF MUNNAR POLICE STATION, IDUKKI ``` ## **`PETITIONERS/ACCUSED 1 TO 11:`** - **`1 GOUTHAM, AGED 30 YEARS`** - **`S/O KALIMUTHU,MARAYOOR VILLAGE, IDUKKI DISTRICT, PIN - 685613`** - **`2 SIVA, AGED 35 YEARS`** - **`MARAYOOR VILLAGE, IDUKKI DISTRICT, PIN - 685613`** - **`3 SARAVANAN, AGED 35 YEARS`** - **`MARAYOOR VILLAGE, IDUKKI DISTRICT, PIN - 685613`** - **`4 RAJU, AGED 38 YEARS`** - **`S/O KANTHAN, MARAYOOR VILLAGE, IDUKKI DISTRICT, PIN - 685613`** - **`5 VISHNU, AGED 35 YEARS`** - **`MARAYOOR VILLAGE, IDUKKI DISTRICT, PIN - 685613`** - **`6 RAJA, AGED 40 YEARS`** - **`MARAYOOR VILLAGE, IDUKKI DISTRICT, PIN - 685613`** - **`7 BALU, AGED 40 YEARS`** - **`MARAYOOR VILLAGE, IDUKKI DISTRICT, PIN - 685613`** - **`8 MUTHULAKSHMI, AGED 48 YEARS`** ``` W/O KALIMUTHU, KANDHAN HOUSE, MICHLE GIRI MARAYOOR, MARAYOOR, IDUKKI DISTRICT, PIN - 685613 ``` - **`9 SHANTHI, AGED 45 YEARS`** - **`W/O RAJU, MARAYOOR VILLAGE,`** B.A.No.1793 of 2024 -:2:- ``` IDUKKI DISTRICT, PIN - 685613 10JAGADEESH, AGED 40 YEARS MUNNAR, MUNNAR, IDUKKI DISTRICT, PIN - 685612 ``` ``` 11SUBASH, AGED 40 YEARS KANNIMALA, MUNNAR, IDUKKI DISTRICT, PIN - 685612 ``` ``` BY ADVS. N.K.SHYJU GIREESH PANKAJAKSHAN VISHNU MOHAN SAHLA NECHIYIL ATHIRA PADMENDHU ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1793 of 2024 ## -:3:- ## **O R D E R** Dated this the 22[nd] day of March, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused 1 to 11 in Crime No.134/2024 of the Munnar Police Station, Idukki, registered against them for allegedly committing the offences punishable under Sections 143, 144, 147, 148, 323, 294(b), 324, 326 and 367 r/w Section 149 of the Indian Penal Code. 3. The essence of the prosecution case is that: on 05.02.2024, at around 06.45 hours, while the defacto complainant (injured) was walking in front of his relative’s shop, the car driven by the first accused knocked the injured on to the ground, and then, the second accused assaulted him with a hammer and the B.A.No.1793 of 2024 -:4:- third accused hit him with an iron pipe. The accused 4 to 11 facilitated the accused 1 to 3 to assault the injured. Thus, the accused have committed the above offences. 4. Heard; Sri.N.K. Shyju, the learned counsel appearing for the petitioners and Smt.Seetha.S., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of Annexure A1 FIR would substantiate that the offence under Section 326 will not be attracted. The said offence has been deliberately incorporated to deny bail to the petitioners. In any given case, the petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. The petitioners are willing to abide by any stringent condition that may be imposed by this Court and also cooperate with the investigation. Hence, the application B.A.No.1793 of 2024 ## -:5:- may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that there is specific overt alleged against accused 1 to 3. The first accused deliberately knocked down the injured with the car, and the accused 2 and 3 assaulted him with a hammer and iron pipe. She made available the Accident RegisterCum-Wound Certificate dated 05.02.2024, issued by the Medical Officer to substantiate the fact that the injured had suffered a fracture of his right leg. She stated that the custodial interrogation of the accused 1 to 3 is necessary, and recovery is to be effected for the proper and full investigation of the crime. She prayed that the application against the accused 1 to 3 may be dismissed. Nonetheless, she conceded to the fact that there is no overt act alleged against the accused 4 to 11 with regard to committing the offence punishable under Section 326 of the IPC, which is a non-bailable offence. ## B.A.No.1793 of 2024 ## -:6:- 7. On an appreciation of the materials placed on record, it can be gathered that there are specific overt acts alleged against accused 1 to 3 for allegedly committing the offence under Section 326 of the IPC. The allegations in Annexure A1 FIR and wound certificate would prima facie show the involvement of accused 1 to 3 in committing the offence under Section 326 of the IPC. 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: “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 B.A.No.1793 of 2024 ## -:7:- 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 the evidence. We shall not be understood to have held that the Court shall not pass an interim ## B.A.No.1793 of 2024 ## -:8:- 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. 10. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially on apprehending the Accident Register-Cum-Wound Certificate of the B.A.No.1793 of 2024 ## -:9:- injured and on comprehending the nature, gravity, and seriousness of the accusations leveled against the accused 1 to 3, that their custodial interrogation is necessary and recovery is to be effected, I am convinced that the accused 1 to 3 have not made out any exceptional ground 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 the accused 1 to 3 an order of pre-arrest bail. Consequently, the application filed by the accused 1 to 3/petitioners 1 to 3 is dismissed. Nonetheless, considering the fact that there is no specific overt act alleged against the accused 4 to 11, I am of the view that their custodial interrogation is not necessary and they are entitled to an order of pre-arest bail, subject to the condition that they cooperate with the Investigating Officer. In the result; - 1) The application filed by the accused 1 to 3 is ## B.A.No.1793 of 2024 ## -:10:- ## dismissed. 2) The application filed by the accused 4 to 11 is allowed subject to the following conditions: i) The petitioners are directed to surrender before the Investigating Officer within ten days from today. ii) In the event of the petitioners’ 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 petitioners on bail on them 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; iv) The petitioners 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 petitioners shall not intimidate witnesses or B.A.No.1793 of 2024 ## -:11:- interfere with the investigation in any manner; vi). The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file an affidavit to the effect before the court below on the date of execution of the bond; (vii) The petitioners shall not get involved in any other offence while on bail. viii). 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. ix). Applications for deletion/modification of the bail conditions shall also be filed before the court below. x) 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 petitioners even while the petitioners are on B.A.No.1793 of 2024 ## -:12:- 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** mtk/22.03.24