Midhun v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ``` ## `BAIL APPL. NO. 1850 OF 2024` ``` CRIME NO.1969/2023 OF KOLLAM EAST POLICE STATION, KOLLAM ``` ## `PETITIONER:` ``` MIDHUN AGED 21 YEARS S/O. MUTHAYYA, SNEHA THEERAM NAGAR, RESETTLEMENT COLONY, PALLITHOTTAM. P.O, KOLLAM WEST VILLAGE, KOLLAM, PIN – 691006 ``` ``` BY ADV M.RAJESH ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA HIGH COURT OF KERALA ERNAKULAM, PIN – 682031 2STATION HOUSE OFFICER EAST POLICE STATION, KOLLAM CHINNAKKADA PO, KOLLAM (DIST), PIN – 691001 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.1850/2024_ _-:2:-_ Dated this the 19[th] day of March, 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 second accused in Crime No.1969/2023 of Kollam East Police Station, registered against the accused (two in number), for allegedly committing the offences punishable under Sections 294(b), 324 & 307 read with Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The essence of the prosecution case is that: on 25.12.2023, at around 6.00 hours, while the victim and his friend were travelling on a motorcycle, the accused Nos.1 & 2 chased them on a motorcycle, ridden by the second accused, and they intercepted the vehicle. Then, the first accused stabbed on the neck of _B.A.No.1850/2024_ _-:3:-_ the victim with a broken glass piece and attempted to murder him. Thereafter, the accused Nos.1 & 2 fled from the scene of occurrence on their bike. Thus, the accused have committed the above offences. 4. Heard: Sri.M. Rajesh, the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, the learned Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure-1 First Information Report[FIR] as well as the First Information Statement would substantiate that there is no specific overt act alleged against the petitioner, except that he had taken the first accused on his vehicle to the scene of occurrence. It was the first accused who stabbed the victim on his neck. Therefore, the offence under Section 307 of the IPC _B.A.No.1850/2024_ _-:4:-_ will not be attracted, so far as the petitioner is concerned. In any given case, the petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. He submitted that the accused Nos.1 & 2, in furtherance of their common intention, had intercepted the vehicle on which the victim and his friend were travelling and, then, the first accused stabbed him with a broken glass piece and attempted to commit the murder of the victim. He made available the treatment certificate of the victim named ‘Sibin Stephen’ dated 24.01.2024 issued by the Travancore Medical College Hospital, to substantiate the serious injuries suffered by the victim. He submitted that the petitioner's custodial interrogation is necessary and recovery of the motorcycle is to be _B.A.No.1850/2024_ _-:5:-_ effected for the proper and full investigation of the crime. If an order of pre-arrest bail is granted, it would certainly sabotage the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner and the first accused is that they in furtherance of a common intention had intercepted the vehicle on which the victim and his friend were travelling and the first accused stabbed the victim with a glass piece on his neck, and he suffered serious injuries. A perusal of the treatment certificate of the injured would substantiate that the injury is tallying with accusations made against the accused. The Investigating Officer has incorporated Section 34 of the IPC. On a prima-facie consideration of the materials on record, I find that the accusations attributed against the petitioner is well founded. 8. Recently, in **Srikant Upadhyay v. State of** _B.A.No.1850/2024_ _-:6:-_ **Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “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 _B.A.No.1850/2024_ _-:7:-_ 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 to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. On an overall consideration of the facts, the rival submissions made across the Bar and the _B.A.No.1850/2024_ _-:8:-_ materials placed on record, especially after going through the treatment records of the injured, and on comprehending the seriousness, gravity, and nature of the offences alleged against the petitioner, that the petitioner's custodial interrogation is necessary and that the recovery is to be effected, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extraordinary 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 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 _B.A.No.1850/2024_ _-:9:-_ 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/19.03.24 //True copy// P.A. To Judge