Goutham and Sreeraj 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. 2075 OF 2024` ``` CRIME NO.45/2024 OF Peramangalam Police Station, Thrissur ``` ## `PETITIONER/S:` ``` 1GOUTHAM, AGED 23 YEARS S/O SANTHOSH, KUNNATHULLY HOUSE, KAIPARAMBU P.O, PUTHUR DESOM, THRISSUR DISTRICT, PIN - 680546 2SREERAJ, AGED 22 YEARS S/O UNNIKRISHNAN, KUNNATHULLY HOUSE, KAIPARAMBU P.O, PUTHUR DESOM, THRISSUR DISTRICT, PIN - 680546 BY ADVS. C.DHEERAJ RAJAN ANAND KALYANAKRISHNAN ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No.2075/2024 ## **-: 2 :-** ## **C.S.DIAS,J.** = = = = = = = = = = = = = = = = = = = = **B.A No.2075 of 2024** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of March, 2024 ## **ORDER** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (‘Code’, for short), for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 2 in Crime No.45/2024 of the Peramangalam Police Station, Thrissur, registered against them for allegedly committing the offences punishable under Sections 341, 323, 324 and 326 r/w 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 18.01.2024 at around 20.30 hours, the accused wrongfully restrained the defacto complainant and his friend while they were travelling on a motor cycle and B.A No.2075/2024 ## **-: 3 :-** the 1[st] accused hit him with an iron pipe on his face and he sustained grievous injuries. The 2[nd] accused fisted him on his head. Thus, the accused have committed the above offences. 4. Heard Sri.C.Dheeraj Rajan, the learned counsel appearing for the petitioners and Smt. Neema T.V., the learned Senior Public Prosecutor appearing for the respondent. 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. In any given case, the offence under Section 326 IPC will not be attracted because even as per the prosecution allegation, the 1[st] accused has hit on his head with an iron pipe. There is no corresponding injury seen on the injured as per the wound certificate. Moreover, there is B.A No.2075/2024 **-: 4 :-** no specific overt act alleged against the 2[nd] accused. Therefore, the petitioners custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the 1[st] accused hit the defacto complainant with an iron pipe on his face which resulted in the fracture of his nasal bone. She made available the medical certificate issued by the Government Medical College hospital, Thrissur dated 06.02.2024 to substantiate the fact that the defacto complainant sustained a fracture of his nasal bone. Nonetheless, she conceded the fact that the 2[nd] accused had only fisted the defacto complainant. However, she stated that the investigation in the case is in progress and recovery has to be effected. If the petitioners are granted an order of pre-arrest bail, it would sabotage B.A No.2075/2024 ## **-: 5 :-** the investigation. Hence, the application may be dismissed. 7. On an evaluation of the materials on record, especially the medical certificate of the defacto complainant, it shows that, the injured has suffered a nasal bone fracture on 18.01.2024, which corresponds with the accusations levelled against the accused. Thus, I am prima facie satisfied that these are materials to establish the involvement of the 1[st] accused in committing the offence under Section 326 IPC. However, there is no specific overt act alleged against the 2[nd] accused in committing the offence under Section 326 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 B.A No.2075/2024 ## **-: 6 :-** ## 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 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 B.A No.2075/2024 ## **-: 7 :-** 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 B.A No.2075/2024 ## **-: 8 :-** 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 comprehending the nature, gravity, and seriousness of the accusations leveled against the 1[st] accused, which corroborates with the medical certificate of the defacto complainant, that the 1[st] accused’s custodial interrogation is necessary and recovery has to be effected, I hold that the 1[st] accused is not entitled to an order of pre-arrest bail. Nonetheless, since there is no specific overt act alleged against the 2[nd] accused, I am convinced that, he is entitled for an order of pre-arrest bail. In the result, ## B.A No.2075/2024 ## **-: 9 :-** I) The application of the 1[st] accused is dismissed. Nonetheless, I direct that, if the 1[st] 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 1[st] accused moves an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If 1[st] accused does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the 1[st] accused as if no order has been passed in this case. **II** ) The application of the 2[nd] accused is allowed subject to the following conditions: i) The 2[nd] accused is directed to surrender before the Investigating Officer within one week from B.A No.2075/2024 ## **-: 10 :-** today. ii) In the event of the 2[nd] 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 2[nd] accused on bail on them executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; iv) The 2[nd] accused shall co-operate with the investigation and make himself available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; v). The 2[nd] accused shall not intimidate witnesses or interfere with the investigation in any manner; vi). The 2[nd] 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 B.A No.2075/2024 ## **-: 11 :-** 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 2[nd] accused even while the 2[nd] 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) Needless to say, any observations made in this order is only for the purpose of deciding the application and the same shall not be construed as an expression on the merits of the case to be decided by the Courts. Sd/- ## **C.S.DIAS, JUDGE** Sbna/