Raveendran P.A. v. State of Kerala & The Station House Officer, Bekkal Police Station, Kasaragod District

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** # **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939** **Bail Appl.No.252 of 2018** AGAINST THE ORDER IN CRMP 4457/2017 of SESSIONS COURT, KASARAGOD DATED 21-12-2017 CRIME NO.734/2017 OF BEKKAL POLICE STATION , KASARGOD ## PETITIONER/ACCUSED ------------------------- RAVEENDRAN P.A, AGED 48 YEARS, S/O.LATE KUNHIKANNAN, "PREM NIVAS", THOTTY, PALLIKKARA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV.SRI.P.K.SUBHASH ## RESPONDENTS/COMPLAINANT/STATE: ------------------------------------------- ## 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682 031. ## 2. THE STATION HOUSE OFFICER - BEKKAL POLICE STATION, KASARAGOD DISTRICT 671 121. BY PUBLIC PROSECUTOR SRI.C.K.PRASAD THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02-02-2018, THE COURT ON 06-02-2018 PASSED THE FOLLOWING: B.A.NO.252 OF 2018 ----------------------- ## APPENDIX ----------PETITIONER'S ANNEXURES ------------------------------ A1: CERTIFIED COPY OF ORDER DATED 21-12-2017 IN CRL.M.P.NO.4457 OF 2017 RESPONDENTS' ANNEXURES -------------------------------- NIL TRUE COPY P.S TO JUDGE **“CR”** ## **R.NARAYANA PISHARADI, J** ************************* B.A.No.252 of 2018 -----------------------------------------------Dated this the 6[th ] day of February, 2018 ## **O R D E R** The petitioner is the first accused in the case registered as Crime No.734/2017 of Bekkal police station under Sections 143, 147, 148, 452, 427, 323, 324 and 506(1) read with 34 I.P.C. He seeks the protection envisaged under Section 438 of the Code of Criminal Procedure, 1973 in the event of arrest by the police in the case. 2. The prosecution case can be briefly stated as follows: The petitioner is a relative of the de facto complainant. On 15.11.2017, at about 20.00 hours, the petitioner and eight other persons went to his house on motor cycles. The petitioner, who was armed with a stick, entered into the house of the de facto complainant. He beat the de facto complainant with the stick causing injury on the right hand and also kicked him with his leg. B.A.No.252/2018 2 He also threatened that he would kill the de facto complainant and his son. Hearing the commotion, the neighbours reached there and then the petitioner and the others left the place after causing damage to the window glass of the house by throwing stones. Earlier on the day, the de facto complainant had questioned the petitioner about his act of selling liquor at a public place. It is alleged that this provoked the petitioner to commit the offensive acts. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary. 4. The case diary reveals that the investigating officer has filed a report in the Magistrate's Court concerned to delete the offences punishable under Sections 143, 147 and 148 read with 149 I.P.C from the case and also to delete the eight other persons, who had been earlier implicated in the case, from the array of accused. Therefore, now, the petitioner is the sole accused in the case. 5. The only non-bailable offence alleged against the petitioner is under Section 452 I.P.C. The allegation against the B.A.No.252/2018 3 petitioner is that he criminally trespassed into the house of the de facto complainant and that he was then armed with a stick and that he beat the de facto complainant with the stick causing injury on the right hand. Prima facie, this allegation is sufficient to find that the petitioner committed house - trespass after having made preparation to cause hurt to the de facto complainant. Prima facie, the act of the petitioner attracts the offence punishable under Section 452 I.P.C. 6. The petitioner and the de facto complainant are relatives. The prosecution has no case that the petitioner caused injury or that he intended to cause injury on any vital part of the body of the de facto complainant. The prosecution has no case that the petitioner has got any criminal antecedents. Custodial interrogation of the petitioner appears to be not necessary to have an effective investigation in the case. The prosecution has also no apprehension that on getting bail, the petitioner would abscond and flee from justice. In these circumstances, I am of the view that the discretion of the Court can be exercised in favour of the petitioner to grant him pre-arrest bail. B.A.No.252/2018 4 7. In this context, it is to be noted that the petitioner had earlier moved the Court of Session, Kasaragod for granting an order of anticipatory bail. The learned Sessions Judge dismissed the petition but issued certain directions. The operative portion of the order of the learned Sessions Judge reads as follows: _**“The petition is accordingly dismissed with a direction to the petitioner to surrender before the jurisdictional Magistrate within 10 days from the date of this order and move for regular bail. The learned Magistrate shall consider his bail application and pass appropriate orders without delay in accordance with the law, considering his health and the materials placed before the court by the prosecution.”**_ 8. In this context, it is advantageous to refer to the decision rendered by this Court in **Anthru v. Sub Inspector of Police: 2015 (4) KHC 61: ILR 2015 (3) Kerala 775** in which the legality of issuing direction to the accused to surrender before the Investigating Officer or the Magistrate was considered. This Court has held as follows: B.A.No.252/2018 5 _“ If the Court allows an application under S.438, the only direction that may be passed is the direction to the Investigating Officer to release the petitioner on bail if he is arrested. It is illegal for the Court to direct the petitioner to surrender before the Investigating Officer._ _**A**_ _**fortiori, under no circumstance the Court can direct the accused to surrender before the Magistrate in the course of an investigation** . If the applicant is entitled to 'anticipatory bail', the Court shall grant it, and if he is not, the Court shall reject it. For still stronger reasons,_ _**when the Court dismisses the application, there is no justification at all to direct the petitioner to surrender before the Magistrate or the Investigating Officer** as some Courts do. That which cannot be done directly shall not be done indirectly also'”_ 9. In the instant case, the order passed by the learned Sessions Judge granting ten day's time to the accused to surrender before the Magistrate's Court is contrary to the dictum laid down by this Court in Anthru's case (supra). The aforesaid B.A.No.252/2018 6 order virtually prevented the investigating officer from arresting the accused during the aforesaid period inspite of the dismissal of the application made by the accused seeking anticipatory bail. The Sessions Court should not have issued a direction which had the effect of causing serious interference with the powers and duties of the police officer in investigating the case. There is no prohibition for the accused to surrender before the the Magistrate even after the disposal of his application under Section 438 Cr.P.C. But, the Court shall not issue any directions in that regard which would have the effect of preventing free and fair investigation. 10. In the light of the finding by this Court that the petitioner is entitled to get an order granting pre-arrest bail, the application is allowed and it is ordered as follows: 1) The petitioner shall be released on bail on executing a bond for Rs.25,000/- with two sureties each for the like amount in the event of his arrest by the police in Crime No. 734/2017 of Bekkal Police Station. B.A.No.252/2018 7 2) The petitioner shall appear before the investigating officer between 9 a.m and 11 a.m on all Mondays and Thursdays for a period of two months from the date of his release on bail. 3) The petitioner shall not influence or intimidate the prosecution witnesses. He shall not make any attempt to tamper with the evidence in the case. 4) The petitioner shall not leave the State of Kerala without the prior permission of the jurisdictional Court. 5) The petitioner shall appear before the investigating officer as and when directed in writing to do so. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy