Sudheesh, Vishnu and Anoop v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945** **BAIL APPL. NO. 1965 OF 2024** **CRIME NO.205/2024 OF OTTAPALAM POLICE STATION, PALAKKAD** **AGAINST THE ORDER DATED 02.03.2024 IN CRMC NO.1294 OF 2024 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD PETITIONERS/ACCUSED:** **1 SUDHEESH AGED 26 YEARS S/O. SETHUMADHAVAN, KALLITHODI HOUSE, P.O. PANAMANNA, OTTAPALAM TALUK, PALAKKAD DISTRTICT, PIN – 679 501** **2 VISHNU AGED 24 YEARS S/O. SETHUMADHAVAN, KALLITHODI HOUSE, P.O. PANAMANNA, OTTAPALAM TALUK, PALAKKAD DISTRTICT, PIN – 679 501** **3 ANOOP AGED 28 YEARS S/O CHANDRAN, CHEMPULLITHODI HOUSE, P.O.AMBALAVATTOM, PANAMANNA, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN – 679 501** ## **BY ADV P.JAYARAM** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031** ## **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 1965 OF 2024 2 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused 1 to 3 in Crime No.205/2024 of the Ottapalam Police Station, Palakkad registered against the accused for allegedly committing the offences punishable under Sections 341, 323, 324 and 326 r/w Section 34 of the Indian Penal Code ('IPC', in short). 3. The essence of the prosecution case is that: the accused 1, 2 and 4, in prosecution of their common intention and out of their previous animosity towards the first informant, had on 16.02.2024 at around 16.30 hours, wrongfully restrained the first informant and the accused 1 and 2 using iron rods assaulted the first informant on his head and body. The other accused assaulted the first informant with hands and kicked him. The informant BAIL APPL. NO. 1965 OF 2024 3 suffered grievous injuries including a fracture of his nasal bone and a deep injury on his head. Thus, the accused have committed the above offences. 4. Heard; Sri.Jayaram P., the learned counsel appearing for the petitioners and Smt.Neema T.V., the learned Public Prosecutor. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have been falsely implicated in the crime. A reading of the First Information Report would substantiate that the offence under Section 326 will not be attracted. The Investigating Officer has deliberately incorporated the said offences only for the purpose of denying bail to the petitioners. In any given case the petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners may be granted an order of pre-arrest bail. BAIL APPL. NO. 1965 OF 2024 4 6. The learned Public Prosecutor seriously opposed the application. She contended that the petitioners have used iron rods and hit the first informant, who has suffered grievous injuries including a fracture and a head injury. She made available the accident register cum wound certificate dated 16.02.2024 issued by the P.K.Das Institute of Medical Sciences, Ottapalam, to substantiate the fact the first informant had suffered a mild head injury and a nasal bone fracture. She further stated that the petitioners' custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would certainly hamper with the full and proper investigation of the crime. Hence, the bail application may be dismissed. 7. The prosecution allegation against the petitioners is that, they in furtherance of their common intention had restrained the first informant and assaulted him with iron rods, and as a result of which he suffered grievous BAIL APPL. NO. 1965 OF 2024 5 injuries including a nasal bone fracture. The said aspect stands prima facie corroborated with the accident register cum wound certificate. 8. The petitioners had filed Crl.M.C.No.1294/2024 before the Court of Session, Palakkad for an order of pre-arrest bail. By Annexure A1 order, the learned Sessions Judge had dismissed the application principally on the ground that the petitioners' custodial interrogation is necessary and recovery is to be effected. 9. 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 BAIL APPL. NO. 1965 OF 2024 6 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 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. ….......” ## 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 BAIL APPL. NO. 1965 OF 2024 7 satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 11. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, particularly after going through the accident register cum wound certificate of the first informant/injured and on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioners, that the petitioners' custodial interrogation is necessary and that the recovery is to be effected, I am convinced that the petitioners have not made out any exceptional grounds to invoke the extra ordinary 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. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days 8 BAIL APPL. NO. 1965 OF 2024 from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. Sd/- **C.S.DIAS JUDGE** rkc/18.03.24 BAIL APPL. NO. 1965 OF 2024 9 ## **APPENDIX OF BAIL APPL. 1965/2024** **PETITIONER ANNEXURES** **Annexure 1** **ORDER DATED 02-03-2024 IN CRMC 1294/2024 ON DISTRICT COURT & SESSIONS COURT, PALAKKAD**