Sreejith C v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 3439 OF 2024 ``` ``` CRIME NO.386/2024 OF POTHENCODE POLICE STATION, THIRUVANANTHAPURAM ``` ``` AGAINST THE ORDER/JUDGMENT DATED 09.04.2024 IN CRMC NO.888 OF 2024 OF COURT OF ``` ``` SESSION,THIRUVANANTHAPURAM ``` ``` PETITIONER( S )/1ST ACCUSED: ``` ``` SREEJITH C, AGED 28 YEARS S/O CHANDRABABU, THOTTATHIL VEEDU, ANAKKODE VAVARA AMBALAM, POTHENCODE P.O, ANDOORKONAM, THIRUVANANTHAPURAM, PIN – 695584 ``` ``` BY ADVS. T.U.SUJITH KUMAR DINESH G WARRIER ``` ## **`RESPONDENT(S)/STATE:`** ``` STATE OF KERALA, REPRESENTED INSPECTOR OF POLICE, POTHENCODE POLICE STATION THROUGH PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682 031 BY ADVS. SMT.NEEMA T.V (SENIOR PUBLIC PROSECUTOR) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.3439/2024 ``` ``` 2 ``` ## **O R D E R** Dated this the 26[th] day of July, 2024 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.386/2024 of the Pothencode Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offences punishable under Sections 341, 294(b), 323, 324, 326, 506(ii) and 308 r/w Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 20.03.2024, at around 16:10 hours, the accused, in furtherance of the common intention, had wrongfully restrained the defacto complainant and had attacked him with dangerous weapons and inflicted grievous injuries on him. The 1[st] accused hit him with a helmet on his head, the accused 2 to 4 fisted him all over his body and the 2[nd] accused also used a sharp edged ``` BAIL APPL.NO.3439/2024 ``` ``` 3 ``` weapon and inflicted injuries on his face, forehead and nose. The first accused then repeatedly hit the de facto complainant on his head and body with a cricket stump, and he suffered multiple fractures. Thus, the accused have committed the above offences. 4. Heard; Sri.T.U Sujith Kumar, the learned counsel appearing for the petitioner and Smt. Neema T.V, the learned Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the injured had suffered any grievous injuries. The fact that the incident allegedly occurred on 20.03.2024 at 16:10 hours and Annexure-A1 FIR was on registered 21.03.2024 at 23:53 hours proves the falsity in the crime. Moreover, the treatment records shows that ``` BAIL APPL.NO.3439/2024 ``` ``` 4 ``` the injured had pre-existing injuries. Therefore, the alleged fractures of the L4 vertebrae of the injured cannot be taken into consideration. The petitioner is a person without any criminal antecedents. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that it was the petitioner who had inflicted grievous injuries on the injured. The petitioner had initially hit the de facto complainant on his head with a helmet and subsequently used a cricket stump and repeatedly hit the defacto complainant on different parts of his body. She made available the treatment certificate issued by the Ananthapuri Hospitals and Research Institute dated 24.03.2024 of the injured to substantiate that the injured had suffered a fracture of the L4 vertebrae. She submitted that the petitioner's custodial ``` BAIL APPL.NO.3439/2024 ``` ``` 5 ``` interrogation is necessary and the recovery is to be effected for a proper and full investigation. If the petitioner is granted an order of pre-arrest bail, he would sabotage the entire investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that, he initially assaulted de facto complainant with the helmet and subsequently used a cricket stump and hit him on different parts of his body. The said allegation prima facie stands corroborated by the treatment record referred to above, which shows that the injured had suffered a fracture of his L4 vertebrae, which attracts the offence under Sections 326 and 308 of the IPC, although that is a matter to be investigated and decided after trial. 8. The petitioner had moved a similar application before the Court of Session, Thiruvananthapuram, which was dismissed by Annexure-A3 order on that there are finding ``` BAIL APPL.NO.3439/2024 ``` ``` 6 ``` incriminating materials to substantiate the petitioner’s involvement in the crime and that the petitioner’s custodial interrogation is necessary. 9. 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 ``` BAIL APPL.NO.3439/2024 ``` ``` 7 ``` 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” ## 10. 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. ``` BAIL APPL.NO.3439/2024 ``` ``` 8 ``` 11. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, that the petitioner’s custodial interrogation is necessary and that the investigation in the case is only at a nascent stage, 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 an order of pre-arrest bail. Consequently, the bail application is dismissed. Sd/- ## **C.S.DIAS, JUDGE** JJ ``` BAIL APPL.NO.3439/2024 ``` ## **`9`** ## **`APPENDIX OF BAIL APPL. 3439/2024`** ``` PETITIONER’S ANNEXURES Annexure-A1TRUE COPY OF THE F.I.R DATED 21.3.2024 IN CRIME NO. 386/2024 OF POTHENCODE POLICE STATION Annexure-A2TRUE COPY OF THE OUTPATIENT RECORD DATED 21.3.2024 ISSUED FROM THE GOVERNMENT TALUK HOSPITAL, ATTINGAL Annexure-A3CERTIFIED COPY OF THE ORDER DATED 9.4.2024 IN CRL.M.C. NO.888/2024OFTHECOURTOFSESSION, THIRUVANANTHAPURAM ``` ``` //TRUE COPY// ``` ``` PA TO JUDGE ```