Deepu PadmaraJan and Sreechand R S v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 7[TH] DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 BAIL APPL. NO. 4093 OF 2024 CRIME NO.539/2024 OF ATTINGAL POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONERS/ACCUSED 1 AND 2:`** ``` 1DEEPU PADMARAJAN, AGED 37 YEARS C/O PADMARAJAN KUNJIKRISHNAN, DEEPA NIVAS, NEAR ITI ATTINGAL, ATTINGAL, THIRUVANANTHAPURAM DISTRICT-, PIN - 695101 2SREECHAND R S, AGED 34 YEARS S/O RAMACHANDRAN B,NANDANAM, VALIYAKUNNU, NEAR ITI, ATTINGAL P.O, ATTINGAL, AVANAVANCHERRY, THIRUVANANTHAPURAM,, PIN - 695101 BY ADVS. P.ANOOP (MULAVANA) RAJITHA V.K ``` ## **`RESPONDENT/STATE/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SENIOR PUBLIC PROECUTOR SMT. SEETHA. S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.4093 of 2024 ## -:2:- ## **O R D E R** Dated this the 7[th] day of June, 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 and 2 ( wrongly shown as 3 and 4 in the bail application) in Crime No.539/2024 of the Attingal Police Station, Thiruvananthapuram, registered against the accused (four in number), for allegedly committing the offences punishable under Sections 294(b), 323, 324 and 326 r/w Section 34 of the Indian Penal Code (in short, 'IPC'). 3. The crux of the prosecution allegation is that: on 10.04.2024, the first accused went to the shop of the defacto complainant and ordered fried chicken. As there was some delay in serving the food, the first accused got agitated, and he hit the defacto complainant with a stone on his cheek, causing a fracture on his cheek bone as B.A.No.4093 of 2024 ## -:3:- well as a crack on his tooth. The other accused also assisted the first accused to commit the above offences. Thus, the accused have committed the above offences. 4. Heard; Sri.P. Anoop, the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. A reading of AnnexureA1 FIR would substantiate that the offence under Section 326 is not attracted to the facts of the case. The said offence has been deliberately incorporated by the Investigating Officer to deny bail to the petitioners. The petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She made available the treatment records of the injured to substantiate the fact that the injured had B.A.No.4093 of 2024 ## -:4:- suffered a fracture of the angle of the mandible and was treated as an inpatient in Sree Gokulam Medical College & Research Foundation, on 17.04.2024. She also submitted that there are incriminating materials to substantiate the involvement of the petitioners’ in the crime. The petitioners’ custodial interrogation is necessary, and recovery is to be effected. Nonetheless, she did not dispute the fact that the specific overt act of causing the grievous injury, so as to attract the offence under Section 326 of the IPC, is only attributed against the first accused, who hit the defacto complainant with a stone on his face. She prayed that the application may be dismissed. 7. On an analysis of Annexure A1 FIR it can be decided that the specific overt act of causing the grievous injury to the defacto complainant is alleged against the first accused. The second accused only assaulted a friend of the defacto complainant, who did not suffer any grievous injury. B.A.No.4093 of 2024 ## -:5:- 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “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 xxxx xxx 10. xxx xxx xxx xxx 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 ## B.A.No.4093 of 2024 ## -:6:- 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. ….. …...” 9. In **Jai Prakash Singh v. State of Bihar and Anr.** [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that an order of a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and to misuse his liberty. B.A.No.4093 of 2024 -:7:- 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on comprehending that specific overt act is attributed against the first petitioner/first accused, who allegedly caused grievous injury to the defacto complainant, which stands prima facie corroborated by the treatment certificate of the defacto complainant, and further that his custodial interrogations is necessary and recovery is to be effected, I am not inclined to exercise my discretionary power in favour of the first petitioner/first accused since he has not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, the application filed by the first accused/first petitioner is only to be dismissed. Nonetheless, since there is no specific overt act alleged against the second accused/second petitioner so as to attract the offence under Section 326 of the IPC, I am of the view that the second accused/second petitioner is B.A.No.4093 of 2024 ## -:8:- entitled to an order of pre-arrest bail. Resultantly: - (1) The application filed by the first petitioner/first - accused is dismissed. - (ii) The application filed by the second - petitioner/second accused is allowed, subject to the following conditions: - (i) The second accused is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the second accused’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The second accused shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer; - (iv) The second accused 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 him from disclosing such facts to the B.A.No.4093 of 2024 ## -:9:- court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The second accused shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before said court within the said period; - (vi) The 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. - (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 second B.A.No.4093 of 2024 ## -:10:- accused even while the 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]. (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/- ## **C.S.DIAS,JUDGE** mtk/07.06.24