ROJIMON.M.V @ ROJI MATHEW v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946** ## **BAIL APPL. NO. 2694 OF 2024** **CRIME NO.317/2024 OF Kalamassery Police Station, Ernakulam** **AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.588 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ARISING OUT OF THE ORDER/JUDGMENT DATED IN FIR NO.317 OF 2024 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD PETITIONER/S:** **ROJIMON.M.V @ ROJI MATHEW AGED 43 YEARS S/O VARGHESE, MURINGAKATTU CHIRAYIL HOUSE, VEZHPRA.P.O, KUTTANAD, ALAPPUZHA DISTRICT, PIN - 689595** ## **BY ADV R.KISHORE (KALLUMTHAZHAM)** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **2 STATION HOUSE OFFICER AGED 44 YEARS KALAMASSERRY POLICE STATION, ERANAKULAM, PIN - 682035** ## **OTHER PRESENT:** ## **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 2694 OF 2024 2 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the 2[nd] accused in Crime No.317/2024 of the Kalamassery Police Station, Ernakulam, registered against the accused (seven in number) for allegedly committing the offences punishable under Sections 143, 147, 328, 341, 365 and 419 r/w Section 149 of the Indian Penal Code. 3. The essence of the prosecution case is that: on 10.02.2024, at around 24.30 hours, the accused, in prosecution of their common intention, formed themselves into an unlawful assembly and went to M.M.Metals near the Kalamassery Industrial Estate by impersonating themselves as officers of the Narcotic Cell. The 1[st] accused, who is the brother of the defacto complainant and was working as the Manager of the above company owned by the defacto complainant, out of BAIL APPL. NO. 2694 OF 2024 3 his previous animosity with the defacto complainant formed an unlawful assembly with accused 2 to 7 and the accused 2 to 7 wrongfully restrained the defacto complainant and administered an injection on the defacto complainant who fell unconscious. Thereafter, they abducted him and took him to the Nair's Psychiatric Hospital and admitted him there as an inpatient against his will. Thus, the accused have committed the above offences. 4. Heard; Sri. R.Kishore, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations leveled against him. The petitioner has no complicity in the crime. The petitioner only acted on the instructions of the Doctor of the hospital to take the defacto complainant to the hospital. The offence under Section 365 cannot be attributed against the petitioner. The petitioner's custodial interrogation is not necessary BAIL APPL. NO. 2694 OF 2024 4 and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to establish the petitioner's involvement in the crime. The petitioner along with the other accused, in furtherance of their common intention and out of the previous animosity of the 1[st] accused towards the defacto complainant, his brother, had wrongfully restrained the defacto complainant, administered him with an injection, made him unconscious, abducted him and thereafter admitted him in the hospital to brandish him as a psychiatric patient. There are certain pending civil cases between the 1[st] accused and the defacto complainant. It is to get an advantage in the litigation the 1[st] accused did the above act. The petitioner's custodial interrogation is necessary and is to be effected. The accused have recovery committed a heinous crime. If an order of pre-arrest bail is granted, it would certainly hamper the investigation. BAIL APPL. NO. 2694 OF 2024 5 Hence, the application may be dismissed. 7. On an evaluation of the materials on record, it can be prima facie deduced that the accused had, in furtherance of their common intention, allegedly administered an injection on the defacto complainant, made him unconscious and got him admitted him in a psychiatric hospital for the purpose of brandishing him as a mental patient. The allegations attributed against the petitioner and the other accused are serious and grave. There are also materials to prima facie establish the complicity of the accused in the crime. 8. The petitioner had moved a similar application before the Court of Session, Ernakulam. By Annexure A2 order, the learned District Judge dismissed the application on finding that the petitioner's custodial interrogation is necessary. 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: BAIL APPL. NO. 2694 OF 2024 6 “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 individual against unwarranted arrest and we say that BAIL APPL. NO. 2694 OF 2024 7 such orders shall be passed in eminently fit cases. xxx 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 misused. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record and on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, that the petitioner’s custodial interrogation is necessary, recovery is to be effected and the investigation is only at the nascent stage, I am not BAIL APPL. NO. 2694 OF 2024 8 satisfied that the petitioner has made out grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS, JUDGE** rkc/06.06.24 BAIL APPL. NO. 2694 OF 2024 9 ## **APPENDIX OF BAIL APPL. 2694/2024** ## **PETITIONER ANNEXURES** |**Annexure :A1**|**THE TRUE COPY OF THE FIR NUMBERED AS**| |---|---| ||**317/2024 DATED 12.02.2024**| |**Annexure :A2**|**THE TRUE COPY OF THE ORDER IN CRL.M.C**| ||**NO.588/2024 DATED 06.03.2024**| |**Annexure :A3**|**THE TRUE COPY OF THE ID CARD OF THE**| ||**PETITIONER**| |**Annexure :A4**|**THE TRUE COPY OF THE MRD CARD OF THE DE-**| ||**FACTO COMPLAINANT**|