Khalil Rahman v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946** **BAIL APPL. NO. 3596 OF 2024** **CRIME NO.201/2024 OF VAGAMON POLICE STATION, Idukki** **PETITIONER/S:** **KHALIL RAHMAN AGED 55 YEARS S/O MUHAMMADALI, PARAKETTIL HOUSE, VAGAMON.P.O, VAGAMON VILLAGE, IDUKKI DISTRICT, PIN - 685503** **BY ADVS. C.H.ABDUL RASAC K.R.AVINASH (KUNNATH)** ## **RESPONDENT/S:** **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 23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3596 OF 2024 2 ## **O R D E R** 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 petitioner is the sole accused in Crime No.201/2024 of the Vagamon Police Station, Idukki registered against him, for allegedly committing the offences punishable under Sections 294(b), 506, 324, 326 and 307 of the Indian Penal Code, 1860. 3. The crux of the prosecution case is that: on 16.04.2024 at around 19 hours, the accused, with an intention to cause bodily harm to the husband of the defacto complainant (injured), in the pathway leading to the house of the defacto complainant, abused the injured in obscene language and, thereafter, inflicted an injury on his forehead with an axe which lead to a fracture on his skull. Thus, the accused has committed the above offences. BAIL APPL. NO. 3596 OF 2024 3 4. Heard; Sri.Abdul Rasac, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Sections 326 and 307 of the IPC to deny bail to the petitioner. There is a longstanding rivalry between the petitioner and the injured and there is a civil suit pending between them as O.S.No.240/2018 before the Court of the Munsiff, Peerumedu. In fact, the injured had gone to the house of the petitioner in an inebriated condition with an axe and he attempted to murder the petitioner. It was in the said altercation that occurred in the compound of the petitioner, that the injured suffered the injury. The petitioner has not caused any injury so as to attract the offences under Sections 326 and 307 of the IPC. Moreover, the recovery has already been effected. BAIL APPL. NO. 3596 OF 2024 4 Therefore, the petitioner's custodial interrogation is not necessary. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to substantiate the complicity of the petitioner in the crime. She made available the accident register cum wound certificate issued by the K.M.Mani Smaraka Govt. General Hospital, Pala dated 16.04.2024, to substantiate that the injured had suffered a lacerated wound of 4 X 4 X 4 centimeters and a fracture of the frontal bone (chipping of the bone). She submitted that the petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation of the crime. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that, he with an intention to cause bodily harm to the injured had axed him, which lead to the injured suffering BAIL APPL. NO. 3596 OF 2024 5 a fracture to his skull and also a lacerated wound on his forehead. The petitioner's contention is that the incident occurred in the compound of the petitioner and, therefore, he cannot be held guilty etc., are untenable and are matters to be investigated by the Police. In any case, that is not a ground to grant the petitioner an order of prearrest bail. The accident register cum wound certificate and the materials on record prima facie establish the petitioner's involvement in the crime. 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 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). BAIL APPL. NO. 3596 OF 2024 6 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 and his liberty is being misused. BAIL APPL. NO. 3596 OF 2024 7 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 petitioner, that the petitioner’s custodial interrogation is necessary and that the investigation in the case is only at a nascent stage, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.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. Nonetheless, I direct that, if the petitioner 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 the petitioner moves an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the petitioner does not BAIL APPL. NO. 3596 OF 2024 8 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. Sd/- ## **C.S.DIAS,JUDGE** Rkc/23.05.24