Shibin.S v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 BAIL APPL. NO. 1883 OF 2024 ``` ``` CRIME NO.164/2024 OF KADAKKAVOOR POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER/ACCUSED:`** ``` SHIBIN.S, AGED 26 YEARS PANDARAKUDI, NEAR VALIYAPALLI, VAKKOM.P.O., THIRUVANANTHAPURAM, PIN - 695308 ``` ``` BY ADV P.ANOOP (MULAVANA) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1883 of 2024 ## -:2:- Dated this the 3[rd] day of April, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the seventh accused in Crime No.164/2024 of the Kadakkavoor Police Station, Thiruvananthapuram, registered against the accused (eight in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 294(b), 323, 324, 363 and 308 r/w Section 149 of the Indian Penal Code, 1860. 3. The crux of the prosecution case is that: on 22.02.2024 at around 20.45 hours, the accused, in furtherance of their common intention, to wreak vengeance on the defacto complainant, formed B.A.No.1883 of 2024 -:3:- themselves into an unlawful assembly and wrongfully restrained him and his friend. The accused, thereafter, abducted the defacto complainant and his friend in an autorickshaw belonging to the seventh accused, manhandled him, and caused grievous injuries to him. Thus, the accused have committed the above offences. 4. Heard; Sri.P. Anoop, the learned counsel appearing for the petitioner and Smt. Seetha.S, the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The offences under Sections 363 and 308 have been deliberately incorporated by the Investigating Officer to deny bail to the petitioner. There is no specific overt act alleged against the petitioner for assaulting the defacto ## B.A.No.1883 of 2024 ## -:4:- complainant and his friend. The petitioner is a lawabiding citizen, and he does not have any criminal antecedents. The petitioner is ready to cooperate with the investigation and abide by any stringent condition that may be imposed by this Court. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that the defacto complainant and his friend were abducted and taken away from the place of occurrence in the autorikshaw belonging to the seventh accused. There is a specific overt act alleged against the petitioner to having caused injuries to the defacto complainant and his friend. The petitioner is a person with criminal antecedents, as he is involved in two other crimes of similar nature of the same police station in the years 2015 and 2023. The petitioner’s custodial ## B.A.No.1883 of 2024 ## -:5:- interrogation is necessary, and recovery is to be effected. If the petitioner is granted of an order of prearrest bail, it would hamper the investigation. Hence, the application may be dismissed. 7. On an analysis of the materials placed on record, it can be seen that the prosecution allegation against the petitioner is that the defacto complainant and his friend were abducted and taken away from the seen of occurrence in the autorikshaw that is allegedly belonging to the petitioner. It is also stated that the petitioner also caused injuries to the defacto complainant and his friend. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: B.A.No.1883 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 xxxx xxx 10. xxx xxx xxx xxx 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 B.A.No.1883 of 2024 ## -:7:- 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. ….. …...” 9. In **Jai Prakash Singh v. State of Bihar and Anr.** [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that an order of a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and to misuse his liberty. B.A.No.1883 of 2024 -:8:- 10. After bestowing anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on comprehending the nature, seriousness, and gravity of the accusations levelleld against the petitioner, that the petitioner’s custodial interrogation is necessary, that the recovery is to be effected, and that the petitioner is a person with criminal antecedents, I am convinced that the petitioner has not made out any exceptional ground to invoke the extraordinary 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. Resultantly, the bail application is dismissed. 11. Nonetheless, I direct that, if the petitioner surrender before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court B.A.No.1883 of 2024 -:9:- on the date of surrender itself. Then, if the petitioner move 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/03.04.24 ## B.A.No.1883 of 2024 -:10:- ## **`APPENDIX OF BAIL APPL. 1883/2024`** ``` PETITIONER ANNEXURES ANNEXURE 1 ``` ``` TRUE COPY OF THE FIR IN CRIME NO: 164/2024 OF KADAKKAVOOR POLICE STATION ```