Limna Shaiju v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 BAIL APPL. NO. 5474 OF 2024 ``` ``` CRIME NO.621/2024 OF OLLUR POLICE STATION, THRISSUR ``` ## **`PETITIONER/ACCUSED NO.4:`** ``` LIMNA SHAIJU, AGED 44 YEARS W/O SHAIJU P.J PUDUVA HOUSE, THAIKATTUSSERY P.O. EDAKUNNI DESOM, OLLUR VILLAGE THRISSUR DISTRICT-, PIN - 680306 ``` ``` BY ADVS. MAHESH V.MENON RAJITHA V.K ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SMT SEETHA S SENIIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.5474 of 2024 -:2:- Dated this the 26[th] day of July, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the fourth accused in Crime No. 621/2024 of the Ollur Police Station, Thrissur, which is registered against the accused for allegedly committing the offences punishable under Sections 342, 323, 324, 294(b), 506 and 394 r/w Section 34 of the Indian Penal Code. 3. The essence of the prosecution allegation is that; on 25.06.2024, the accused, in furtherance of their common intention, invited the defacto complainant to the house of the first accused, and the fourth accused asked him to sit in a room. The other accused wrongfully confined and stripped the defacto complainant and then, voluntarily caused hurt to him, and thereafter, robbed his money, made him sign blank papers, and took away his B.A.No.5474 of 2024 -:3:- mobile phone and ATM cards. Thus, the accused have committed the above offences. 4. Heard; Sri.Mahesh V. Menon, the learned counsel appearing for the petitioner and Smt. Seetha.S, the learned Public Prosecutor. 5. The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. She has been falsely implicated in the crime. A reading of Annexure A1 FIR would substantiate that none of the offences can be attributed against the petitioner. The petitioner had only asked the defacto complainant to sit in a room, and it was the other accused who allegedly committed the above offences. The petitioner does not have any criminal antecedents. The petitioner's 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 accused had B.A.No.5474 of 2024 -:4:- induced the defacto complainant to go to the residence of the first accused, and it was the petitioner who made the defacto complainant to sit in the room, and made the other accused to assault, rob and make the defacto complainant to execute blank papers. The specific overt act alleged against the petitioner is that she was made the defacto complainant to sit in a room, and, the accused one to four had a common intention. Therefore, it cannot be said that the petitioner has no complicity in the crime. The petitioner’s custodial interrogation is necessary, and recovery is to be effected. The accused 1 to 3 have already been arrested and enlarged on bail. If the petitioner is granted an order of pre-arrest bail, she would torpedo the investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that, the accused 1 to 4 had, in furtherance of their common intention, induced the defacto complainant to go to the residence of the first accused, and the petitioner asked him to sit in B.A.No.5474 of 2024 -:5:- the room. Thereafter, the other accused assaulted him, robbed his money, and made him sign blank papers. 8. 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). 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 B.A.No.5474 of 2024 -:6:- 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. 10. On an anxious consideration of the facts, the B.A.No.5474 of 2024 -:7:- rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness, and gravity of the accusations attributed against the petitioner, that there are prima facie materials to substantiate the petitioner's involvement in the crime, that the petitioner's custodial interrogation is necessary, and that the recovery is to be effected, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary 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. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within a week from today, she 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 B.A.No.5474 of 2024 -:8:- petitioner does not 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** mtk/26.07.24