James Joseph and Deby James v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 5[TH] DAY OF JUNE 2024 / 15TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3469 OF 2024 ``` ``` CRIME NO.149/2024 OF CHITTARIKAL POLICE STATION, KASARGOD ``` ## `PETITIONERS:` ``` 1JAMES JOSEPH, AGED 56 YEARS S/O. JOSEPH, VADAKKAKUTTE HOUSE, ALAKODE P.O, KANNUR DISTRICT, PIN – 670571 2DEBY JAMES, AGED 52 YEARS W/O. JAMES JOSEPH, VADAKKAKUTTE HOUSE, ALAKODE P.O., KANNUR DISTRICT, PIN – 670571 BY ADVS.PAUL K.VARGHESE A.A.GEETHA ``` ``` RESPONDENT: ``` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3469/2024_ _-:2:-_ _Dated this the 5[th] day of June, 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 petitioner are the accused Nos.1 & 2 in Crime No.157/2024 of the Chittarikal Police Station, Kasaragod (mistakenly shown as Crime No.149/2024 in the cause title), registered against the accused for allegedly committing the offences punishable under Sections 341, 323 & 326 read with Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The crux of the prosecution case is that: on 11.04.2024, at around 10.30 hours, while the de-facto complainant was going to attend a marriage function, the first accused attacked the de-facto complainant with a stone, and he suffered grievous injuries. Thus, _B.A.No.3469/2024_ ## _-:3:-_ the accused have committed the above offences. 4. Heard; Sri. Paul K.Varghese, the learned counsel appearing for the petitioners and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. In fact, there are civil litigations pending between the parties. In an incident that occurred on 11.04.2024, the de-facto complainant assaulted the petitioners, and Annexure-6 First Information Report [FIR] was registered in connection with the said incident. The medical records show that the petitioners have also suffered injuries in the incident. It is only as a counterblast to Annexure-A6 FIR that the present crime has been registered by the petitioners using the influence of the Police. There is no material to show that the offence ## _B.A.No.3469/2024_ ## _-:4:-_ under Section 326 of the IPC is attracted. 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. He submitted that there is specific overt act attributed against the first petitioner to establish that he attacked the de-facto complainant with a stone, who suffered a proximal humerus fracture dislocation on his left shoulder. He made available the treatment records of the injured issued by the St. Josephs Hospital, Kannur, dated 11.04.2024 to substantiate his contention. He 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 certainly hamper the investigation. He prayed that the _B.A.No.3469/2024_ ## _-:5:-_ application may be dismissed. 7. The prosecution allegation against the petitioners is that they, in furtherance of their common intention, attacked the de-facto complainant and the first accused hit him with a stone, and he suffered a fracture on his left shoulder. 8. On an analysis of the materials placed on record, particularly the FIR and the First Information Statement, it can be seen that there is a specific overt act alleged against the first petitioner, who attacked the de-facto complainant with a stone and suffered a fracture. The said accusation stands prima-facie corroborated by the treatment records of the de-facto complainant. However, that is a matter to be investigated and decided at the time of trial. 9.Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable _B.A.No.3469/2024_ _-:6:-_ 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 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 _B.A.No.3469/2024_ ## _-:7:-_ 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” ## 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. On an anxious consideration of the facts, the rival submissions made across the Bar and the _B.A.No.3469/2024_ ## _-:8:-_ materials placed on record, especially after going through the treatment records and the specific overt act attributed against the first accused, I am of the view that the first accused has not made any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that the first petitioner is not entitled to an order of pre-arrest bail. Nonetheless, since there is no specific overt act alleged against the second accused, who is a lady, to attract the offence under Section 326 of the IPC, I hold that she has made out grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Resultantly, - `I.` The application filed by the first petitioner is dismissed. - `II.` The application filed by the second petitioner is allowed subject to the following conditions: ## _B.A.No.3469/2024_ ## _-:9:-_ - (i) The second petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the second petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on her executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The second petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The second petitioner 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 her from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; ## _B.A.No.3469/2024_ ## _-:10:-_ - (v) The second petitioner shall surrender her passport before the jurisdictional court concerned within a period of one week from the date of her release on bail. If she has no passport, she shall file an affidavit to the effect before the said court within the said period; - (vi)The second petitioner 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 _B.A.No.3469/2024_ ## _-:11:-_ the matter and, if necessary, to effect recoveries on the information, if any, given by the second petitioner even while the second petitioner 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** DST/05.06.24 //True copy// P.A. To Judge