Fasal and Asarudheen v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 ``` ## `BAIL APPL. NO. 2152 OF 2024` ``` CRIME NO.20/2024 OF CHAVAKKAD POLICE STATION, THRISSUR ``` ``` AGAINST THE ORDER DATED 04.03.2024 IN CRMC NO.223 OF 2023 OF DISTRICT COURT & SESSIONS COURT,THRISSUR ``` ## `PETITIONERS:` ``` 1FASAL AGED 28 YEARS S/O MUHAMMED KUNJU, PUTHUVEETTIL HOUSE, MANATHALA VILLAGE, VANCHIKKADAVU DESOM, CHAVAKKAD TALUK THRISSUR DISTRICT, PIN – 680506 ``` ``` 2ASARUDHEEN AGED 24 YEARS S/O SAINUDHEEN, CHANDANAPARAMBIL HOUSE, MANATHALA VILLAGE, VANCHIKKADAVU DESOM, CHAVAKKAD TALUK THRISSUR DISTRICT, PIN – 680506 ``` ``` BY ADVS.V.V.JOY HEMANTH H. AGNA PREM DHILSHA HABEEB ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.2152/2024_ _-:2:-_ Dated this the 25[th] day of March, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioners are the accused Nos.1 & 2 in Crime No.20/2024 of Chavakkad Police Station, Thrissur, registered against the accused (eight in number), for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324, 308 & 294(b) read with Section 149 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The essence of the prosecution case is that: on 07.01.2024, at around 2.45 hours, the accused Nos.1 to 4, in prosecution of their common intention, restrained the de-facto complainant who was riding on his motorcycle and hurled abuses at him.Then, the first _B.A.No.2152/2024_ _-:3:-_ accused hit the de-facto complainant with an iron pipe on his head and the second accused hit him with an iron pipe on his hand, and the de-facto complainant suffered injuries. Thus, the accused have committed the above offences. 4. Heard: Sri. V.V. Joy, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. A reading of Annexure-1 First Information Report [FIR] would substantiate that the offence under Section 308 of the IPC will not be attracted. The Investigating Officer has deliberately incorporated the said offence, only to deny bail to the petitioners. The petitioners’ custodial interrogation is not necessary and no recovery is to be _B.A.No.2152/2024_ _-:4:-_ effected. Hence, the petitioners may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioners/accused Nos.1 & 2 had hit the de-facto complainant with iron pipes on his head and on his shoulders. She made available accident register-cum-wound certificate of the de-facto complainant dated 07.01.2024, issued by the Taluk Headquarters Hospital, Chavakkad, to substantiate the fact that the de-facto complainant had suffered a wound measuring 8x1x1 cm. on his scalp, tenderness on his forearm and also bleeding from his ear. She 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 sabotage the full and proper investigation of the crime. Hence, the application may be dismissed. _B.A.No.2152/2024_ _-:5:-_ 7. On an evaluation of the materials on record, it is seen that there is specific overt acts alleged against the accused Nos.1 & 2 that they assaulted the de-facto complainant with iron pipes. The accusations levelled against the petitioners in Annexure-1 FIR prima-facie corroborate with the injuries mentioned in the accident register-cum-wound certificate. 8. The petitioners had moved a similar application before the Court of Session, Thrissur, by filing Crl.M.C.Nos.187 & 223/2024, which was dismissed by Annexure-2 on the specific finding that the petitioners’ custodial interrogation is necessary and recovery is to be effected. 9. 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: _B.A.No.2152/2024_ _-:6:-_ “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 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 _B.A.No.2152/2024_ _-:7:-_ eminently fit cases. xxx xxx” 10. 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. 11. After bestowing my anxious consideration of the facts, the rival submissions made across the Bar on and the materials placed on record, especially comprehending the seriousness, gravity, and nature of the offences alleged against the petitioners, and on prima-facie being satisfied of the petitioners’ _B.A.No.2152/2024_ _-:8:-_ involvement in the crime, 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 Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/25.03.24 //True copy// P.A. To Judge