Madhu v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 7[TH] DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 4267 OF 2024 ``` ``` CRIME NO.217/2024 OF NENMARA POLICE STATION, PALAKKAD ``` ``` AGAINST THE ORDER DATED 09.05.2024 IN CRMC NO.2496 OF 2024 OF I ADDITIONAL DISTRICT COURT, PALAKKAD ``` ## `PETITIONER:` ``` MADHU, AGED 29 YEARS S/O.MANIKANDAN, MATTUPARA, NEMMARA, CHITTUR, PALAKKAD-678508., PIN – 678508 ``` ``` BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.4267/2024_ ## _-:2:-_ _Dated this the 7[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 is the first accused in Crime No.217/2024 of the Nenmara Police Station, Palakkad, which is registered against the accused for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 324, 326 & 308 read with Section 149 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The essence of the prosecution case is that: on 31.03.2024, at around 23.00 hours, the accused Nos.1 to 5, in furtherance of their common intention, had formed themselves into an unlawful assembly with deadly weapons, and they wrongfully restrained the de-facto complainant and his friends, named Reghu, Hari and Ratheesh (injured), and the first accused _B.A.No.4267/2024_ _-:3:-_ caught hold of the collar of the de-facto complainant and shouted to kill him. Then, the second accused hit the de-facto complainant on his face with an iron rod, which resulted in loosening of two teeth and he suffered a fracture. The third accused hit him with an iron rod, and he sustained a fracture on his nasal bone and left facial bone. Likewise, the first accused took a sword and inflicted a cut injury on the right side of the head of the de-facto complainant. The accused Nos.4 & 5 hit the injured on different parts of his body. Thus, the accused have committed the above offences. 4. Heard; Sri. V.A. Johnson (Varikkappallil), the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of the First Information Report [FIR] and the materials on record _B.A.No.4267/2024_ ## _-:4:-_ would reveal that a specific overt act is alleged against the accused Nos.2 & 3 for having caused grievous injuries on the injured. Even though the allegation against the petitioner is that he inflicted a cut injury with a sword, it is not serious in nature. Therefore, the petitioner's custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that there is a specific overt act alleged against the petitioner for having inflicted a cut injury on the head of the de-facto complainant with a sword. There is a corresponding injury in the treatment records.The petitioner's custodial interrogation is necessary, and recovery is to be effected. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that he, along with the other accused, in _B.A.No.4267/2024_ _-:5:-_ furtherance of their common intention, had assaulted the injured. The specific overt act alleged against the petitioner is that he inflicted a cut injury on the head of the de-facto complainant. 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). xxx xxx xxx 24.We have already held that the power to grant anticipatory _B.A.No.4267/2024_ _-:6:-_ 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” 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.4267/2024_ _-:7:-_ 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, rival submissions made across the Bar and the materials placed on record, especially on considering the fact that there is a specific overt act alleged against the petitioner that used a sword and inflicted a cut injury on the head of the de-facto complainant, that the petitioner’s custodial interrogation is necessary, and recovery is to be effected, I am not satisfied that the petitioner has made out any exceptional ground to invoke the discretionary powers 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. Resultantly, the bail application is dismissed. Nonetheless, I direct that, if the petitioner _B.A.No.4267/2024_ ## _-:8:-_ 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 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** DST/07.06.24 //True copy// P.A. To Judge