Shaijomon v. State of Kerala

1 BA No.4622 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 BAIL APPL. NO. 4622 OF 2024 ``` ``` CRIME NO.599/2024 OF Kothamangalam Police Station, Ernakulam PETITIONER/S: ``` ``` SHAIJOMON, AGED 35 YEARS S/O BADHUSHA P.A , RESIDING AT PADIKKATHUKUDY HOUSE,ELAMBRAKARA ERANALLOOR VILLAGE, ERNAKULAM DISTRICT, KERALA, PIN - 686661 ``` ``` BY ADV SACHIN RAMESH ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` Sr PP Smt Seetha S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 2 BA No.4622 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.4622 of 2024** ## **-----------------------------------** ## **Dated this the 17[th] day of July, 2024** ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973 (‘Code’ for short) for an order of pre-arrest bail. 2. The petitioner is the first accused in crime No.599/2024 of the Kothamangalam Police Station, Ernakulam, which is registered against the accused, for allegedly committing the offences punishable under Secs 324, 294(b), 506(i) and 326 read with Sec.34 of the Indian Penal Code ( for short, IPC). 3. The crux of the prosecution case is that: the first accused had demanded the de facto complainant to purchase liquor for him, which he did not agree to. Due to the said 3 BA No.4622 of 2024 animosity, on 29.4.2024, at around 20.30 hours, the accused, in furtherance of their common intention, assaulted the de facto complainant. The first accused hit him with a soda bottle in a bar and he suffered an injury on his eye. The first accused also hit the de facto complainant on his left wrist using a sharp edged weapon like key. The second and third accused slapped the de facto complainant on his cheeks and back and he fell down. The fourth accused facilitated the accused 1 to 3 to commit the above offences. Thus, the accused have committed the above offences. 4. Heard; Sri.Sachin Ramesh, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate that the petitioner had inflicted the grievous injuries on the de 4 BA No.4622 of 2024 facto complainant. In fact, employees of the bar have clearly stated that the petitioner was not even there at the scene of occurrence. It was the persons named Basil, Jomon and Arun Joy, who had hit the de facto complainant and inflicted injuries on his face. The Investigating Officer has deliberately implicated the petitioner as an accused in the crime. Even otherwise the offence under Sec.326 is not attracted to the facts of the case. The CCTV footages show that the petitioner was not in the scene of occurrence. In any given case, 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 opposed the application. She submitted that there are incriminating materials to substantiate the petitioner’s involvement in the crime. The investigation has revealed that the petitioner has inflicted grievous injuries on the eyes of the de facto 5 BA No.4622 of 2024 complainant. She made available the discharge summary of the de facto complainant dated 4.5.2024 issued by the Little Flower Hospital and Research Centre, Angamaly to substantiate that the de facto complainant suffered grievous injuries, i.e., scleral tear on his left eye. In the said certificate, the de facto complainant has clearly stated to the Doctor that it was the petitioner who assaulted him with a soda bottle and he suffered the injury. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would certainly torpedo the investigation. Therefore, the application may be dismissed. 7. The prosecution allegation against the petitioner is that he along with the other accused, had in furtherance of their common intention, attacked the de facto complainant. The petitioner assaulted the de facto complainant with a soda bottle and he suffered an injury on his eyes. The said 6 BA No.4622 of 2024 accusation prima facie stands corroborated with the treatment records of the de facto complainant, although that is a matter to be investigated and decided at the time of trial. 8. The petitioner had filed a similar application before the Court of Session, Ernakulam, which was dismissed by Annexure AII order on finding that there are prima facie materials to substantiate the petitioner’s involvement in the crime. 9. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137], the Hon’ble Supreme Court, after referring to the earlier precedents on the point, has succinctly laid down the law 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 7 BA No.4622 of 2024 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). 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 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. 8 BA No.4622 of 2024 The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 11. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on considering the fact that there are prima facie materials to substantiate the petitioner’s involvement in the crime, the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am convinced that the petitioner has not made out any valid ground 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. **==> picture [28 x 14] intentionally omitted <==** sks/17.7.2024 **C.S.DIAS, JUDGE**