SAIMON v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5400 OF 2024 ``` ``` CRIME NO.323/2024 OF PAYYAVOOR POLICE STATION, KANNUR ``` ## **`PETITIONER/ACCUSED:`** ``` SAIMON, AGED 70 YEARS S/O P.T KURIAN, PUZHAVA THOTTATHIL, KAKKATHODU, PAYYAVOOR, KANNUR,, PIN - 670633 ``` ``` BY ADVS. NANDAGOPAL S.KURUP ADITH KIRAN R.S. ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, ``` ``` REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SRI C S HRITHWIK SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ``` ``` ON 02.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B .A No.5400 of 2024 : 2 : ## **O R D E R** ## **Dated this the 2[nd] day of August, 2024** The application is filed under Section 438 of the Code or Criminal Procedure, 1973, by the sole accused in Crime No. 323 of 2024 of the Payyavoor Police Station, Kannur, which is registered against him for allegedly committing offences punishable under Sections 447, 341, 324, 307 and 506 of the Indian Penal Code, 1860 (for short, ‘IPC’). 2. The gist of the prosecution case is that, on 18.06.2024, around 23:00 hours, the accused trespassed into the house of the defacto complainant - his brother – and attacked him with a spade, and inflicted grievous injuries on his head and body. Thus, the accused has committed the above offences. 3. Heard; Sri.Nandagopal S.Kurup, the learned counsel for the petitioner and Sri. C.S.Hrithwik, the learned Senior Public Prosecutor. : 3 : B .A No.5400 of 2024 4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. The Investigating Officer has deliberately incorporated Section 307 of the IPC to see that the petitioner is denied bail. The petitioner is 63 years old and is the older brother of the defacto complainant. There is no material to substantiate that the petitioner has committed the above offences. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. He submitted that there are incriminating materials to substantiate the petitioner’s involvement in the crime. The petitioner has caused grievous injuries to the defacto complainant. He made available the discharge summary of the injured issued by the Government Medical College Hospital, Kannur, dated 23.06.2024 to substantiate the fact that the injured had : 4 : B .A No.5400 of 2024 suffered a blunt trauma, a chest injury, and various other injuries on his body. He submitted that the petitioner’s custody interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of prearrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 6. The prosecution case is that the petitioner had trespassed into the house of the defacto complainant, assaulted him with a spade, and inflicted grievous injuries on him. The said accusation, prima facie, stands corroborated by the treatment records referred to above, although that is a matter to be investigated and ultimately decided at the time of trial. 7. 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 B .A No.5400 of 2024 : 5 : 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). **==> picture [274 x 8] intentionally omitted <==** 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 such orders shall be passed in eminently fit cases. xxx xxx xxx”. B .A No.5400 of 2024 : 6 : 8. 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. 9. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness, and gravity of the accusations attributed against the petitioner, that there are prima facie materials to substantiate the petitioner's involvement in the crime, that the petitioner's custodial interrogation is necessary, and that the recovery is to be effected, I am not satisfied that the petitioner has made out any valid B .A No.5400 of 2024 : 7 : ground to invoke the discretionary 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. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within a week from today, she 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 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** mtk/02.08.24 B .A No.5400 of 2024 : 8 : ## **`APPENDIX OF BAIL APPL. 5400/2024`** ## **`PETITIONER ANNEXURES`** ``` Annexure A1TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 323/2024 OF PAYYAVOOR POLICE STATION, KANNUR Annexure A2TRUE COPY OF THE MEDICAL RECORDS PERTAINING TO THE PETITIONER ISSUED FROM MERCY HOSPITAL, PAYYAVOOR ```