Rahul and Rajeev v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 4002 OF 2024` ``` CRIME NO.227/2024 OF UPPUTHARA POLICE STATION, IDUKKI ``` ## `PETITIONERS:` ``` 1RAHUL, AGED 26 YEARS S/O. RAGHU, VATHALUR.H, MARUTHUMPETTE, ANAVILASAM, CHAPPATH P.O., IDUKKI DISTRICT, PIN – 685505 2RAJEEV, AGED 24 YEARS S/O. RAGHU, VATHALUR.H, MARUTHUMPETTE, ANAVILASAM, CHAPPATH P.O., IDUKKI DISTRICT, PIN – 685505 ``` ``` BY ADV D.GANESH KUMAR ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.4002/2024_ _-:2:-_ _Dated this the 10[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 petitioners are the accused Nos.1 & 2 in Crime No.227/2024 of the Upputhura Police Station, Idukki, which is registered against them for allegedly committing the offences punishable under Sections 353, 332, 294(b) & 506 read with Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The crux of the prosecution case is that: on 15.04.2024, at around 20.30 hours, the Police party attached to the Upputhura Police Station, on receiving information that there was a law and order situation in the area where the accused were residing, went over there, and then, the accused abused the de-facto _B.A.No.4002/2024_ _-:3:-_ complainant and caused hurt to him. Thus, the accused have committed the above offences. 4. Heard; Sri. D. Ganesh Kumar, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating Officer has deliberately registered Annexure-A1 First Information Report [FIR] against the petitioners to harass them. In fact, the first petitioner's wife suffered injuries in the incident, and she has lodged Annexure-A5 FIR. The petitioners’ custodial is not and no interrogation necessary, recovery is to be effected. Hence, the petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that there are incriminating _B.A.No.4002/2024_ _-:4:-_ materials to substantiate the petitioners involvement in the above crime. In fact, the first accused used a stone and attacked the de-facto complainant and he suffered a contusion to his left forearm and bleeding. She made available accident register-cum-wound certificate dated 15.04.2024 issued by the hospital. She submitted that the second accused had abused the de-facto complainant in obscene language. The petitioners’ custodial interrogation is necessary, and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would certainly hamper the investigation. Moreover, the petitioners had moved a similar application before the Court of Session, Thodupuzha, which was dismissed by Annexure-A6 order. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioners is that on 15.04.2024, when the Police party _B.A.No.4002/2024_ _-:5:-_ reached the place to enquire about a law and order situation that was prevailing in the locality, the accused, in furtherance of their common intention, had assaulted the police force and prevented the de-facto complainant and his party from discharging their official duty. Indisputably, the allegation in committing the offence under Sections 353 & 332 of the IPC is principally attributed against the first accused, who used the stone and caused injury to the de-facto complainant. This prima-facie stands corroborated by the accident register-cum-wound certificate produced by the learned Public Prosecutor. However, that is a matter to be investigated and decided at the time of the trial. 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 _B.A.No.4002/2024_ _-:6:-_ ## 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 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 _B.A.No.4002/2024_ _-:7:-_ 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 anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of _B.A.No.4002/2024_ _-:8:-_ the accusations levelled against the first petitioner/first accused, against whom a specific overt act is attributed, that his custodial interrogation is necessary and recovery is to be effected, I am of the definite view that the first petitioner `/` first accused is not entitled to an order of pre-arrest bail, since he has not made out any convincing grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I am compelled to dismiss the application filed by the first petitioner/ first accused. On the contrary, considering the fact that there is no specific overt act alleged against the second petitioner/second accused, so as to attract the offence under Sections 353 & 332 of the IPC, which are the non-bailable offences, I am of the view that the second petitioner/second accused is entitled to an order of pre-arrest bail. Resultantly, _B.A.No.4002/2024_ _-:9:-_ - `I.` The application filed by the first petitioner is dismissed. - `II.` The application filed by the second petitioner is allowed subject to the following conditions: - (i) The second petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the second petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on her executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The second petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The second petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the court or to any Police Officer or _B.A.No.4002/2024_ _-:10:-_ tamper with the evidence in any manner, whatsoever; - (v) The second petitioner shall surrender her passport before the jurisdictional court concerned within a period of one week from the date of her release on bail. If she has no passport, she shall file an affidavit to the effect before the said court within the said period; - (vi)The second petitioner shall not get involved in any other offence while on bail; - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. _B.A.No.4002/2024_ _-:11:-_ - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the second petitioner even while the second petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) And another** [2020 (1) KHC 663]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- ## **C.S.DIAS,JUDGE** DST/11.06.24 //True copy// P.A. To Judge