Subhash C.K. v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` FRIDAY, THE 24[TH] DAY OF MAY 2024 / 3RD JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 2064 OF 2024` ``` CRIME NO.206/2024 OF PULIKEEZHU POLICE STATION, PATHANAMTHITTA ``` ## `PETITIONER:` ``` SUBHASH C.K AGED 40 YEARS S/O KOCHUCHERUKKAN, CHETTIYAKULATHU HOUSE, KIZHAKKUMBHAGOM P.O., NIRANAM, THIRUVALLA, PATHANAMTHITTA., PIN – 689621 ``` ``` BY ADVS.M.R.SASITH ANJANA SURESH.E LIDHIYA GEORGE ``` ## `RESPONDENT:` ``` 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 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.2064/2024_ _-:2:-_ _Dated this the 24[th] day of May,2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No.206/2024 of the Pulikeezhu Police Station, Pathanamthitta, registered against him for allegedly under Sections committing the offences punishable 324, 326, 294(b) & 506 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The essence of the prosecution case is that: on 04.03.2024, at around 19.30 hours, the accused attacked the father of the de-facto complainant by hitting him on his head with a wooden stick. When the de-facto complainant attempted to intervene in the matter; the accused abused him in obscene language and threatened to murder him. The accused then hit _B.A.No.2064/2024_ _-:3:-_ him with an iron rod on the right side of his forehead and caused grievous injuries to him, including a crack on his skull. Thus, the accused has committed the above offences. 4. Heard; Sri. M.R. Sasith, the learned counsel appearing for the petitioner and Smt. Seetha. S, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. A reading of Annexure-A1 First Information Report [FIR] would substantiate that the offence under Section 326 of the IPC will not be attracted. In fact, the alleged incident occurred in the compound of the petitioner. It was the de-facto complainant and his father, who trespassed into the house of the petitioner. Therefore, the said offences cannot be attributed. Moreover, the petitioner has already filed a complaint against the de-facto complainant and his father because he also suffered _B.A.No.2064/2024_ _-:4:-_ injuries in the incident. In any given case, the petitioner's custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petition may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there is a specific overt act alleged against the petitioner for assaulting the de-facto complainant and his father. She made available the discharge card of one of the injured named ‘Samson’ to substantiate the fact that the said injured had suffered an incised injury and fifteen sutures had to put. He also suffered a facial bone fracture. She submitted that the investigation is only at a nascent stage, the first 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 torpedo the investigation. Hence, the application may be dismissed. There is also every likelihood of the petitioner intimidating the _B.A.No.2064/2024_ _-:5:-_ witnesses and tampering with the evidence. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that, on 04.03.2024, he caused grievous injuries to the de-facto complainant and his father. The materials placed on record, particularly the discharge card prima-facie, substantiate the accusations levelled against the petitioner to be true. However, that is a matter to be investigated and decided at the time of the trial. 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: “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 _B.A.No.2064/2024_ _-:6:-_ 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 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 _B.A.No.2064/2024_ _-:7:-_ 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. 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 levelled against the petitioner, that the petitioner’s custodial interrogation is necessary, and recovery is to be effected, 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. _B.A.No.2064/2024_ _-:8:-_ 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. Sd/- ## **C.S.DIAS,JUDGE** DST/24.05.24 //True copy// P.A. To Judge