Pauloose Varkey v. State of Kerala

2024:KER:59289 **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 CRIME NO.327/2024 OF Kanjikuzhy Police Station, Idukki ``` ``` ------------ ``` ## **`PETITIONER/ACCUSED :-`** ``` PAULOSE VARKEY, AGED 53 YEARS S/O VARKEY, KARAVATTAYIL HOUSE, KEERITHOD KARA, KEERITHODU VILLAGE, IDUKKI TALUK, IDUKKI DISTRICT., PIN - 685 606 ``` ``` BY ADVS. P.CHANDY JOSEPH C.K.VIDYASAGAR ``` ## **`RESPONDENT/STATE :-`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN - 682 031`** - **`2 STATION HOUSE OFFICER KANJIKUZHY POLICE STATION, IDUKKI, PIN - 685 606`** ``` BY SMT.SEETHA S., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 2024:KER:59289 **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL. NO. 5871 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 5th day of August, 2024** The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS', for short), for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No.327/2024 of the Kanjikuzhy Police Station, Idukki, which is registered against him, for allegedly committing the offences punishable under Sections 323, 324 and 308 of the Indian Penal Code. 3. The concise case of the prosecution is that; on 16.06.2024, at around 18:45 hrs., while the son of the de facto complainant was returning from his shop, the accused attempted to outrage his modesty. On being informed about the alleged misbehaviour, the de facto complainant and his son went to the shop of the accused to question about the incident. Then, a scuffle took place and the accused took a knife from his hip and stabbed the de 2024:KER:59289 **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL. NO. 5871 OF 2024 ``` ``` -: 3 :- ``` facto complainant and his son on the abdomen. It is only because the de facto complainant evaded the attack, he did not lose his life. Thus, the accused has committed the above offences. 4. Heard; Sri.C.K.Vidyasagar the learned counsel for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. The Investigating Officer has deliberately incorporated Section 308 of the IPC to see that the petitioner is arrested and incarcerated. Actually, it was the de facto complainant's son who attempted to outrage the modesty of the petitioner's daughter. Thereafter, the de facto complainant and his son went over to the shop of the petitioner and caused a ruckus in his shop. Then a scuffle took place, wherein the **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59289 ``` BAIL APPL. NO. 5871 OF 2024 ``` ``` -: 4 :- ``` de facto complainant and his son suffered injuries. The petitioner has no complicity in the crime. Even assuming that the de facto complainant and his son have suffered some injuries, it is the right of private defence of the petitioner. The petitioner has no 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 there are incriminating materials to substantiate the petitioner's involvement in the crime. She made available the accident register-cum-wound certificate of the de facto complainant and his son dated 16.06.2024 issued by the District Hospital, Idukki, to substantiate that the de facto complainant suffered an incised wound measuring 8 x 2 x 1.5 cm on the left lumbar posteriorly and deep fascia cut of **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59289 ``` BAIL APPL. NO. 5871 OF 2024 ``` ``` -: 5 :- ``` his muscles, and a surgery was conducted. Similarly, the de facto complainant's son also suffered an incised wound measuring 3 x 1 x 0.5 cm and his deep fascia was breached. He also had to undergo a surgery. The petitioner's custodial interrogation is necessary and recovery of the knife is to be effected. If the petitioner is granted an order of pre-arrest bail, it would certainly torpedo the investigation. Hence, the application may be dismissed. 7. The gist of the prosecution allegation against the petitioner is that; he had stabbed the de facto complainant and his son with a knife and they suffered serious injuries. The said allegation _prima facie_ stands corroborated by the medical records referred to above. Whether or not the petitioner had exercised his right of private defence is a matter to be investigated and ultimately decided at the time of trial. 2024:KER:59289 **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL. NO. 5871 OF 2024 ``` ``` -: 6 :- ``` 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 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 2024:KER:59289 **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL. NO. 5871 OF 2024 ``` ``` -: 7 :- ``` 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 overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, gravity, and seriousness of the accusations levelled against the petitioner, the _prima facie_ materials that substantiate the petitioner's involvement in the crime, particularly the **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59289 ``` BAIL APPL. NO. 5871 OF 2024 ``` ``` -: 8 :- ``` treatment records of the injured, that the custodial interrogation of the petitioner is necessary and recovery of the knife is to be effected for the proper and full investigation of the crime, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Section 482 of the BNSS. 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 surrenders before the Investigating Officer within one week 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 **==> picture [58 x 57] intentionally omitted <==** 2024:KER:59289 ``` BAIL APPL. NO. 5871 OF 2024 ``` ``` -: 9 :- ``` 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** Jvt/6.8.2024 2024:KER:59289 **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL. NO. 5871 OF 2024 ``` ``` -: 10 :- ``` ## **`APPENDIX OF BAIL APPL. 5871/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure A1TRUE COPY OF THE ORDER IN CRL. M C NO.533/20024 DATED 04.07.2024 OF THE HON'BLE SESSION'S COURT THODUPUZHA ```