Shibin B v. State of Kerala

1 Bail Application No. 2374 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2374 OF 2024 ``` ``` CRIME NO.75/2024 OF Aryancode Police Station, ``` ``` Thiruvananthapuram ``` ## **`PETITIONER/S:`** ``` SHIBIN B AGED 21 YEARS S/O BINU, KEEZHPARA PUTHEN VEEDU MANCHAMCODE (P.O.) OTTASEKHARAMANGALAM THIRUVANANTHAPURAM DISTRICT,, PIN - 695125 BY ADVS. SWAPNA VIJAYAN K.V.ANIL KUMAR RADHIKA S.ANIL ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM., PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Smt Seetha S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 2374 of 2024 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No. 2374 of 2024** **-----------------------------------** Dated this the 1[st] day of April, 2024 ## **`O R D E R`** The application is filed under Section 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. 75/2024 of the Aryancode Police Station, Thiruvananthapuram, registered against the accused ( six in number), for allegedly committing the offences punishable under Sections 141, 142, 143, 147, 148, 294(b), 341, 323, 324, 506 (ii) and 308 of the Indian Penal Code and Sec.27 of the Arms Act, 1959. 3. The essence of the prosecution case is that: on 28.1.2024 at around 21.00 hours, the accused, in furtherance of their common intention, formed an 3 Bail Application No. 2374 of 2024 unlawful assembly and attacked the de facto complainant by using dangerous weapons and attempted to murder him. The third accused uttered obscene words, the second accused hit him with an iron pipe, the accused 4 to 6 fisted him on his back and the first accused attempted to cut him on his head with a sword. It is only because the de facto complainant warded off the attack, he sustained grievous injuries on his hand. Thus, the accused have committed the above offences. 4. Heard; Smt.Swapna Vijayan, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Sec.308 of the IPC to deny bail to the petitioner. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Moreover, by Annexure-B order, the Court of Session, 4 Bail Application No. 2374 of 2024 Thiruvananthapuram has granted the second accused an order of pre-arrest bail. The petitioner is at par with the said accused. Therefore, the petitioner is entitled to the benefit of a similar order. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner cannot claim parity with the second accused. There is a specific overt act alleged against the petitioner that he used a sword and attempted to cut the de facto complainant on his head. It is only because the de facto complainant warded off the attack, the cut fell on his right hand and caused deep injury on the hand. She made available the accident register cum wound certificate of the injured issued by the General Hospital, Neyyattinkara, dated 28.01.2024 to substantiate her contention. She submitted that 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 sabotage the investigation. The learned Sessions Judge has rightly 5 Bail Application No. 2374 of 2024 dismissed the petitioner’s application for pre-arrest bail by Annexure-B order finding that his custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. 7. On a meticulous scrutiny of the materials placed on record, especially after going through Annexure -A FIR, it can be seen that there is a specific overt act alleged against the petitioner that he attempted to inflict a cut injury on the head of the de facto complainant. It is only because the de facto complainant warded off the attack, he suffered a deep injury on his right hand. The accident register cum wound certificate of the injured corresponds with the accusations levelled in Annexure-A FIR. 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 6 Bail Application No. 2374 of 2024 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. 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 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 7 Bail Application No. 2374 of 2024 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. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially taking into account the grievous injuries sustained by the de facto complainant due to the alleged attack made by the petitioner, that the petitioner’s custodial interrogation is necessary and that the recovery is to be effected and further the findings of the learned Sessions Judge in Annexure B order, I am convinced that the petitioner has not made out any exceptional 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 8 Bail Application No. 2374 of 2024 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 10 days from today, he 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. ``` sks/2.4.2024 ``` ``` sd/- C.S.DIAS,JUDGE ```