Sindhu Dasan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 BAIL APPL. NO. 5480 OF 2024 ``` ``` CRIME NO.338/2024 OF UPPUTHARA POLICE STATION, IDUKKI ``` ## **`PETITIONER/2ND ACCUSED:`** ``` SINDHU DASAN AGED 48 YEARS PANATHOTTATHIL H, KANNAMPADI, MATHAIPARA KARA, UPPUTHARA VILLAGE, IDUKKI DISTRICT, PIN - 685505 BY ADVS. B.SURJITH RAHANA JOSE LIJO JOSEPH AKSHAYA REGHU ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.5480 of 2024 -:2:- Dated this the 29[th] day of July, 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 second accused in Crime No.338/2024 of the Upputhara Police Station, Idukki, which is registered against the accused for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324, 307, 506(ii) r/w Section 34 of the Indian Penal Code (IPC). 3. The essence of the prosecution case is that; on 01.06.2024, the accused, in furtherance of their common intention and out of the previous animosity towards the de facto complainant, the first accused along with two others, had abused the de facto B.A.No.5480 of 2024 -:3:- complainant in obscene language and pelted a stone on his left leg. Then, the second accused exhorted to the first accused to murder the de facto complainant. At that time, the first accused inflicted a cut injury on the de facto complainant with a knife. It is only because the de facto complainant had warded off the attack, he did not lose his life. However, he suffered grievous injury on his left hand vein. Then, the third accused wrongfully restrained the de facto complainant and the second accused emasculated the testicles of the de facto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri.B.Surjith, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik., the learned Senior Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of B.A.No.5480 of 2024 -:4:- the accusations levelled against her. The very fact that the FIR was lodged 11 days after the incident, proves the falsity in the accusation. The petitioner is a lady and there is no specific overt act alleged against her. 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. He submitted that there is specific overt act alleged against the petitioner, who is the person who exhorted the first accused to murder the de facto complainant. Thereafter, the petitioner emasculated the testicles of the de facto complainant and he suffered grievous injuries. The learned Public Prosecutor made available the Accident Register-cumWound Certificate of the de facto complainant issued B.A.No.5480 of 2024 -:5:- by the Taluk Hospital Kattappana, dated 01.06.2024, to demonstrate the nature of injuries suffered by the de facto complainant. She stated 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 certainly hamper the investigation. Hence, the application may be dismissed. 7. The prosecution case is that, the accused, in furtherance of their common intention, had wrongfully restrained the de facto complainant and the first accused inflicted a cut injury and the second accused emasculated the testicles of the de facto complainant and he suffered grievous injuries. The said allegation prima facie stands corroborated by the Accident Register-cum-Wound Certificate referred to above. Nonetheless, these are all matters that have to be investigated and ultimately decided at the time of trial. B.A.No.5480 of 2024 -:6:- ## 8. 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 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 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 B.A.No.5480 of 2024 -:7:- 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” ## 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. On an overall consideration of the facts, the B.A.No.5480 of 2024 -:8:- rival submissions made across the Bar and the materials placed on record, particularly on considering the specific overt act alleged against the petitioner, the prima facie materials that substantiate the petitioner’s involvement in the crime, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not satisfied that the petitioner has made out any convincing grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I am not inclined to allow the application. Resultantly, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within one 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 B.A.No.5480 of 2024 -:9:- 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. `rmm29/7/20` 24 SD/- **C.S.DIAS,JUDGE**