Sourav S. and Akash v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2354 OF 2024 ``` ``` CRIME NO.139/2024 OF Bekal Police Station, Kasargod ``` ## **`PETITIONERS/2ND AND 3RD ACCUSED:`** ``` 1SOURAV.S, AGED 23 YEARS S/O. SATHEESHAN, R/AT. KIZHOOR KADAPPURAM, CHANDRAGIRI. P.O, KALANAD VILLAGE, KASARAGOD TALUK, KASARGOD DISTRICT, PIN – 671317. ``` ``` 2AKASH, AGED 24 YEARS S/O. RAVI ANANDAN, R/AT KIZHHOOR KADAPPURAM,CHANDRAGIRI. P.O, KALANAD VILLAGE,KASARAGOD TALUK, KASARGOD DISTRICT, PIN – 671317. ``` ``` BY ADVS. HEMALATHA BINU GEORGE ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031. ``` ``` SMT.SEETHA S, SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 2354 OF 2024 2 ``` ## **`ORDER`** The application is filed under Section 438 of the Code of Criminal Procedure for an order of pre-arrest bail. 2. The petitioners are the accused Nos.2 and 3 in Crime No.139 of 2024 of the Bekal Police Station, Kasaragod registered against the accused (four in number) for allegedly committing the offences punishable under Sections 341, 324, 307 r/w 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 11.3.2024, at around 1.30 hours, the accused, in furtherance of their common intention, wrongfully restrained the de facto complainant and the 1[st] accused stabbed him out of his previous animosity. It was the 2[nd] accused who facilitated the 1[st] accused to stab the de facto complainant. The accused Nos.3 and 4 had shouted obscene words at the de facto complainant. Thus, the accused have committed the above offences. 4. Heard; Smt.Hemalatha, the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Senior Public Prosecutor. ``` BAIL APPL. NO. 2354 OF 2024 3 ``` `5` . The learned counsel for the petitioners’ submitted that the petitioners are totally innocent of the accusations levelled against them. The petitioners have been falsely implicated in the crime. The offence under Section 307 will not be attracted against the petitioners, as it was the 1[st] accused who inflicted the stab injury on the de facto complainant. Therefore, the petitioners custodial interrogation is not necessary and no recovery is effected. Hence, the petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that the 2[nd] petitioner had wrongfully restrained the de facto complainant and facilitated the 1[st] accused to stab him. There is a specific overt act alleged against the 1[st] petitioner, which is the reason for incorporating Section 34 of the Indian Penal Code. 7. On an analysis of the materials on record, it can be gathered that the 1[st] petitioner had allegedly facilitated the 1[st] accused to stab the de facto complainant and the only overt act alleged against the 2[nd] ``` BAIL APPL. NO. 2354 OF 2024 4 ``` petitioner is that he uttered obscene words at the de facto complainant. 8. Recently, 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 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 ``` BAIL APPL. NO. 2354 OF 2024 5 ``` 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”. 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 anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, and on comprehending the nature, gravity and seriousness of the accusations levelled against ``` BAIL APPL. NO. 2354 OF 2024 6 ``` the 1[st] petitioner and that his custodial interrogation is necessary, I am not satisfied that the 1st petitioner has made out any exceptional 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 to the 1[st] petitioner. Consequently, the bail application filed by the 1st petitioner is dismissed. However, on considering the fact that there is no overt act alleged against the 2[nd] petitioner, I am satisfied that the 2[nd] petitioner is entitled to an order of pre-arrest bail. In the result, I. The application filed by the 1[st] petitioner is dismissed. II. The application filed by the 2[nd] petitioner is allowed, subject to the following conditions: - (i) The 2[nd] petitioner is directed to surrender before the Investigating Officer within ten days from today; (ii) In the event of the 2[nd] petitioner’s arrest, the Investigating Officer shall produce him before the jurisdictional court on the date of surrender itself; ``` BAIL APPL. NO. 2354 OF 2024 7 ``` (iii)On such production, the jurisdictional court shall release the 2[nd] petitioner on bail on them executing a bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; (iv) The 2[nd] petitioner shall co-operate with the investigation and make himself available for interrogation as and when directed by the Investigating Officer; (v) The 2[nd] petitioner shall not intimidate witnesses or interfere with the investigation in any manner; (vi) The 2[nd] petitioner shall not get involved in any other offence while on bail. (vii)The 2[nd] petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (viii)In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. ``` BAIL APPL. NO. 2354 OF 2024 8 ``` (ix)Applications for deletion/modification of the bail conditions shall also be filed before the court below. (x) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the 2[nd] petitioner even while he is on bail as laid down by the Hon'ble Supreme Court in S **ushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. (xi) Any observations made in this order is only for the purpose of deciding the application and the same shall not be construed as an expression on the merits of the case to be decided by the Courts. Sd/- **C.S.DIAS JUDGE** Sru ``` BAIL APPL. NO. 2354 OF 2024 9 ``` ## **`APPENDIX OF BAIL APPL. 2354/2024`** ``` PETITIONER ANNEXURES Annexure A1 ``` ``` A TRUE COPY OF FIR IN CRIME NO.139/2024 OF BEKAL POLICE STATION ```