Sharafudheen K v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 BAIL APPL. NO. 3845 OF 2024** **CRIME NO.162/2024 OF Nattukal Police Station, Palakkad** **PETITIONER/S:** **SHARAFUDHEEN K AGED 41 YEARS S/O.HAMZA K, KURIKKADAN HOUSE, PALAKKAZHI, KARAKKIDAMKUNNU P.O, ALANALLUR-II, PALAKKAD., PIN - 678601** ## **BY ADV NIREESH MATHEW** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3845 OF 2024 2 ## **O R D E R** The application 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 accused in Crime No.162/2024 of the Nattukal Police Station, Palakkad, registered against him for allegedly committing the offences punishable under Sections 341, 323, 324, 326 and 307 of the Indian Penal Code. 3. The essence of the prosecution case is that: on 13.04.2024, at around 18 hours, the accused, out of his previous animosity towards the defacto complainant, with an intention to commit murder of the defacto complainant, wrongfully restrained him and beat him with his hands and then stabbed him with a knife on his abdomen. The defacto complainant sustained serious injuries. Thus, the accused has committed the above offences. 4. Heard; Sri. Nireesh Mathew, the learned counsel BAIL APPL. NO. 3845 OF 2024 3 appearing for the petitioner and Smt. Neema T.V., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. The Investigating Officer has deliberately incorporated Section 307 of the IPC to deny bail to the petitioner. In fact, the petitioner had also sustained serious injuries in the said incident which is discernible from Annexure-2 treatment records. The petitioner's custodial interrogation is not necessary 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. She made available the accident register cum wound certificate of the defacto complainant dated 13.04.2024 issued by the Mother Care Hospital to substantiate that the defacto complainant had suffered grievous injuries including a Grade 4 injury on BAIL APPL. NO. 3845 OF 2024 4 his liver. 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 hamper the investigation of the case. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that, he out of his previous animosity towards the defacto complainant had stabbed the defacto complainant with a knife on his abdomen. The said accusation stands prima facie corroborated by the corresponding injuries seen in the accident register cum wound certificate. It is also seen that the petitioner had moved a similar application before the Court of Session, Palakkad by filing Crl.M.C.No.2334/2024. By Annexure 3 order, the learned Sessions Judge dismissed the application on finding that the petitioner's custodial interrogation is necessary and the grave accusations attributed against the petitioner. 8. Recently, in **Srikant Upadhyay v. State of** **Bihar** [2024 KHC OnLine 6137] the Honourable BAIL APPL. NO. 3845 OF 2024 5 ## 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 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 BAIL APPL. NO. 3845 OF 2024 6 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”. ## 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. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record particularly the accident register cum wound certificate of the injured and on BAIL APPL. NO. 3845 OF 2024 7 comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not satisfied that the petitioner has made out convincing 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/04.06.24 BAIL APPL. NO. 3845 OF 2024 8 ## **APPENDIX OF BAIL APPL. 3845/2024** ## **PETITIONER ANNEXURES** **Annexure 1 TRUE PHOTOCOPY OF THE FIR IN CRIME NO. 162/2024 OF NATTUKAL POLICE STATION, PALAKKAD DISTRICT DATED 14.04.2024** **Annexure 2 TRUE PHOTOCOPY OF THE DISCHARGE SUMMARY DATED 21.04.2024 ISSUED FROM MOULANA HOSPITAL, PERINTHALMANNA** **Annexure 3 TRUE PHOTOCOPY OF THE SAID ORDER DATED 30.04.2024 IN CRL.MC.NO.2334/2024 PASSED BY THE ADDL. SESSIONS JUDGE-II, PALAKKAD**