Noyal Jose v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. ``` ``` FRIDAY, THE 17[TH] DAY OF MAY 2024 / 27TH VAISAKHA, 1946 ``` ## `BAIL APPL. NO. 3382 OF 2024` ``` CRIME NO.351/2024 OF PERUMBAVOOR POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER DATED 06.04.2024 IN CRMC NO.1011 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ``` ``` PETITIONER: ``` ``` NOYAL JOSE AGED 24 YEARS S/O JOSE,KALLUMALEKUDY HOUSE, ELAMBAKAPILLY P.O,KOOVAPPADY, KUNNATHUNADU, PIN – 683544 ``` ``` BY ADV AJEESH M UMMER ``` ``` RESPONDENT: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` SMT. SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3382/2024_ _-:2:-_ _Dated this the 31[st] day of May, 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.351/2024 of the Perumbavoor Police Station, Ernakulam, registered against the accused (six in number) for allegedly committing the offences punishable under Sections 364, 341, 323, 324, 294(b) & 506 read with Section 34 of the Indian Penal Code, 1860 (in short, ‘IPC’). 3. The essence of the prosecution case is that: on 17.03.2024, at around 05 hours, the accused, in furtherance of their common intention and out of the first accused’s animosity towards the de-facto complainant, arranged the second accused to abduct the de-facto complainant. Accordingly, the accused _B.A.No.3382/2024_ _-:3:-_ Nos.2 to 4 abducted the de-facto complainant and fisted him on his stomach, chest, and head. Thereafter, the first accused joined the accused Nos.2 to 4 and also assaulted the de-facto complainant. The fifth accused drove the car. The first accused hurled abuses and also intimidated the de-facto complainant and threatened to cause injuries to him. Thus, the accused have committed the above offences. 4. Heard; Sri. Ajeesh M Ummer, 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 Statement would substantiate that the ingredients to attract Section 364 of the IPC is not attracted to the facts of the case. The overt act is alleged against the first accused, who has already been _B.A.No.3382/2024_ _-:4:-_ enlarged on bail by the jurisdictional Magistrate as per Annexure-1 order. Going by the allegations, the petitioner has played a lesser role than the first accused. Therefore, the petitioner's custodial interrogation is not necessary, and no recovery is to be effected. The learned counsel relied on the decision of the Hon'ble Supreme Court in **State of West Bengal v. Mir Mohammad Omar & Ors.** [(2000) 8 SCC 382] to fortify his contention that in order to attract the offence under Section 364 of the IPC, there should be an intention to murder the abductee. In the case on hand, there is no such allegation; the offence under Section 364 of the IPC will not lie. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that, it was the petitioner who abducted the de-facto complainant at the instructions of the first accused. The petitioner _B.A.No.3382/2024_ _-:5:-_ cannot claim parity with the first accused. Moreover, the first accused was enlarged on regular bail under Section 439 of the Code. 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. Hence, the application may be dismissed. 7. The prosecution allegation against the accused is that the de-facto complainant had to allegedly pay the first accused some money in connection with a transaction. Since the de-facto complainant failed to pay the amount, the first accused arranged the second accused to abduct the de-facto complainant. In furtherance of the said common intention, the second accused and accused Nos.3 to 5 went to the house of the de-facto complainant and abducted him on 17.03.2024, at 05 hours, in a car bearing registration No.KL-42-T-6813. Thereafter, the _B.A.No.3382/2024_ _-:6:-_ accused had allegedly assaulted the de-facto complainant. It is also stated that the first accused joined the accused Nos. 2 to 5, after the de-facto complainant was abducted. 8. The bone of contention of the learned counsel for the petitioner is that since there is no specific allegation that the accused had abducted the de-facto complainant to murder him, the offence under Section 364 of the IPC will not lie. To re-enforce the submission, he relied on the decision in **Mir Mohammad Omar** (supra). Indisputably, the investigation in the case is only at its nascent stage. It is not for this Court to delve into the question whether the intention of the accused was to murder the de-facto complainant or not?. The petitioner had moved the Court of Session for a similar relief by filing Crl.M.C. No.1011/2024. By Annexure-2 order, the learned Sessions Judge dismissed the application on the finding _B.A.No.3382/2024_ _-:7:-_ that the petitioner's custodial interrogation is necessary and that the petitioner is a person with criminal antecedents. 9. 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 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 _B.A.No.3382/2024_ _-:8:-_ 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” 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 _B.A.No.3382/2024_ _-:9:-_ misused. 11. 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 levelled against the petitioner, that the petitioner’s custodial interrogation is necessary, recovery is to be effected, and that the petitioner is a person with criminal antecedents, 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. Sd/- ## **C.S.DIAS,JUDGE** DST/31.05.24 //True copy// P.A. To Judge