Bail Application No. 3940 of 2024

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946** **BAIL APPL. NO. 3940 OF 2024** **CRIME NO.563/2024 OF Kattappana Police Station, Idukki PETITIONER/S:** - **1 VINOD,AGED 52 YEARS, S/O. KRISHNAN, CHANCHANICKAL HOUSE, VALLAKADAVU, KADAMAKUZHI P.O., KATTAPPANA VILLAGE, IDUKKI DISTRICT & TALUK, PIN - 685508** - **2 ARJUN,AGED 20 YEARS, S/O. VINOD, CHANCHANICKAL HOUSE, VALLAKADAVU, KADAMAKUZHI P.O., KATTAPPANA VILLAGE, IDUKKI DISTRICT & TALUK, PIN - 685508** - **3 MANU RAJAPPAN,AGED 40 YEARS, S/O. RAJAPPAN, PAMPOORICKAL HOUSE, VALLAKADAVU, KADAMAKUZHI P.O., KATTAPPANA VILLAGE, IDUKKI DISTRICT & TALUK, PIN - 685508** **BY ADVS. GEORGE MATHEW SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI MEDHA B.S.** ## **RESPONDENT/S:** - **1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 THE STATION HOUSE OFFICER,KATTAPPANA POLICE STATION, IDUKKI DISTRICT, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **3 THE SUB INSPECTOR OF POLICE,KATTAPPANA POLICE STATION, IDUKKI DISTRICT, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031** **SR.PP.SRI.C.S.HRITHWIK** - **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** - **27.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3940 OF 2024 2 Dated this the 27[th] day of May, 2024 ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 1, 2 and 4 in Crime No.563/2024 of the Kattappana Police Station, Idukki registered against the accused, for allegedly committing the offences punishable under Sections 143, 144, 147, 148, 323, 324 and 326 r/w Section 149 of the Indian Penal Code (in short, 'IPC'). 3. The gist of the prosecution case is that: on 21.04.2024, the accused, in prosecution of their common intention, formed themselves an unlawful assembly on the basis of the previous animosity with the defacto complainant and the 1[st] accused hit the defacto complainant with an iron rod. When the defacto complainant fell on the ground, accused 1 to 4 attacked him and caused injuries on his hands and legs. Thus, the accused have committed the above offences. BAIL APPL. NO. 3940 OF 2024 3 4. Heard; Sri.George Mathew Karamayil, the learned counsel appearing for the petitioners and Sri.C.S.Hrithwik, the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Section 326 of the IPC to deny bail to the petitioners. In fact the alleged incident occurred in the building of the petitioners. They were actually assaulted by the defacto complainant and his men but the Police did not register any case. Accordingly, the petitioners had submitted Annexure A3 complaint before the District Police Chief, pursuant to which Annexure A4 FIR was registered on 03.05.2024. The petitioners have also suffered injuries in the incident. There is a long standing civil dispute between the 1[st] petitioner and the defacto complainant, who are brothers. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners are entitled to an order of BAIL APPL. NO. 3940 OF 2024 4 pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. He submitted that there is a specific overt act alleged against the 1[st] petitioner/1[st] accused who has inflicted a grievous injury on the defacto complainant by hitting him with an iron rod. He made available the accident register cum wound certificate issued by the St. Johns Hospital, Kattappana dated 22.04.2024 to substantiate the fact that the defacto complainant suffered a nasal bone fracture. He also submitted that the 1[st] petitioner's custodial interrogation is necessary and recovery is to be effected. If the 1[st] petitioner is granted an order of pre- arrest bail, it would certainly hamper with the investigation. He prayed that the application may be dismissed. However, he did not dispute the fact that there is no specific overt act alleged against the petitioners 2 and 3/accused 2 and 4, so as to attract the offence under Section 326 of the Indian Penal Code. 7. The prosecution allegation against the accused is that, they in prosecution of their common intention, BAIL APPL. NO. 3940 OF 2024 5 formed themselves an unlawful assembly and the 1[st] accused hit the defacto complainant on his nose with an iron rod, and he suffered nasal bone fracture. The said accusation, prima facie, stands corroborated with the accident register cum wound certificate dated 22.04.2024, which shows that the defacto complainant has suffered a nasal bone fracture. However, these are all matters that have to be investigated and decided at the time of trial. But, on an evaluation of the materials on record, there is a specific overt act alleged against the 1[st] petitioner/ 1[st] accused. ## 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 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 BAIL APPL. NO. 3940 OF 2024 6 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 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 BAIL APPL. NO. 3940 OF 2024 7 and his liberty is being misused. After bestowing my anxious consideration to the facts, the 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 1[st] petitioner/ 1[st] accused, that there is a specific overt act alleged against him, that his custodial interrogation is necessary and recovery is to be effected, I am of the view that the 1[st] petitioner has not made out any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that the 1[st] petitioner is not entitled to an order of pre-arrest bail. However, considering the fact that there is no specific overt act alleged against the petitioners 2 and 3/accused 2 and 4, I hold that they are entitled to an order of pre-arrest bail. In the result: - (1) The application filed by the 1[st] petitioner/1[st] accused is dismissed. Nonetheless, I direct that, if the 1[st] petitioner surrenders before the Investigating BAIL APPL. NO. 3940 OF 2024 8 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 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. - (2) The application filed by the petitioners 2 and 3/accused 2 and 4 are allowed subject to the following conditions: - i) The petitioners 2 and 3 are directed to surrender before the Investigating Officer within ten days from today. - (ii) In the event of the 2[nd] and 3[rd] petitioners' arrest, the Investigating Officer shall release the petitioners 2 and 3 on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioners 2 and 3 shall appear before the Investigating Officer for interrogation, as and when BAIL APPL. NO. 3940 OF 2024 9 ## directed by the Investigating Officer. - (iv) The petitioners 2 and 3 shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioners 2 and 3 shall surrender their passport before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passport, they shall file an affidavit to the effect before said court within the said period; - (vi)The petitioners 2 and 3 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. BAIL APPL. NO. 3940 OF 2024 10 - (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (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 petitioners 2 and 3 even while they are 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]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- rkc/27.05.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 3940 OF 2024 11 ## **APPENDIX OF BAIL APPL. 3940/2024** ## **PETITIONER ANNEXURES** **Annexure A1** **TRUE COPY OF FIRST INFORMATION REPORT DTD. 22.04. 2024 IN CR. NO. 563 OF 2024 OF KATTAPPANA POLICE STATION REGISTERED BY 3RD RESPONDENT** **Annexure A2 TRUE COPY OF INTIMATION DTD. 22.04.2024 ISSUED BY MEDICAL OFFICER, ARPANA HOSPITAL, THOOKUPALAM, IDUKKI DISTRICT TO 3RD RESPONDENT** **Annexure A3 TRUE COPY OF COMPLAINT DTD.02.05.2024 FILED BEFORE THE DISTRICT POLICE CHIEF, IDUKKI** **Annexure A4 TRUE COPY OF FIRST INFORMATION REPORT DTD. 03.05.2024 IN CR. NO. 618 OF 2024 OF KATTAPPANA POLICE STATION REGISTERED BY 3RD RESPONDENT** **Annexure A5 IDENTITY CARD ISSUED FROM MES COLLEGE, NEDUMKANDAM, IDUKKI DISTRICT FOR 2022 TO 2025 TO PETITIONER**