Umesh v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5036 OF 2024 CRIME NO.285/2024 OF VALIYAMALA POLICE STATION, THIRUVANANTHAPURAM ``` ## `PETITIONER:` ``` UMESH, AGED 35 YEARS S/O.UNNI,VAISHNAV BHAVAN,CHERUVAKKONAM, PALLIVETTA, PANACODE, THOLICODE VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN – 695541 ``` ``` BY ADVS.ABDUL JAWAD K. A.GRANCY JOSE ``` ## `RESPONDENTS:` ``` 1THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2THE STATION HOUSE OFFICER, VALIYAMALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT, PIN – 695547 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.5036/2024_ _-:2:-_ _Dated this the 23[rd] 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 the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No.285/2024 of the Valiyamala Police Station, Thiruvananthapuram, registered against him for allegedly committing the offences punishable under Sections 294(b), 447, 324 & 308 of the Indian Penal Code, 1860. 3. The gist of the prosecution case is that: on 15.04.2024, at around 22.30 hours, the accused trespassed into the house of the de-facto complainant, attacked him with a chopper, and attempted to murder him. In the process, the accused inflicted grievous injuries on the de-facto complainant. Thus, the accused has committed the above offences. _B.A.No.5036/2024_ _-:3:-_ 4. Heard; Sri.Abdul Jawad K, the learned counsel appearing for the petitioner and Smt. Neema. T.V, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate that the petitioners has committed the offence under Section 308 of the IPC. The Investigating Officer has deliberately incorporated the said offence to deny bail to the petitioner. Moreover, the fact that the First Information Report was registered after one day after the incident, by itself proves the falsity in the crime. The petitioner’s custodial interrogation is not The Officer has necessary. Investigating already recovered the alleged weapon. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail _B.A.No.5036/2024_ _-:4:-_ objection report, inter-alia, contending that there are incriminating materials to prove the petitioner’s involvement in the crime. Even though the petitioner had filed a similar application before the Court of Session, Thiruvananthapuram, the same was dismissed by Annexure-A order, finding that the petitioner's custodial interrogation is necessary. The learned Public Prosecutor made available the treatment records of the injured, dated 15.04.2024 to substantiate the nature of serious injuries suffered by the de-facto complainant. She submitted 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 torpedo the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against is that, the petitioner trespassed into the house of the de-facto complainant, attacked him with a chopper, and _B.A.No.5036/2024_ _-:5:-_ attempted to murder him. It is also alleged that the petitioner inflicted grievous injuries on the de-facto complainant. The said accusation prima facie stands corroborated by the accident register-cum-wound certificate referred to above, which shows that the de-facto complainant suffered serious injuries. Indisputably, the petitioner had filed a similar application before the Court of Session, Thiruvananthapuram, which was dismissed by Annexure-A order. 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 _B.A.No.5036/2024_ _-:6:-_ 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 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 _B.A.No.5036/2024_ _-:7:-_ 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, rival submissions made across the Bar, and the materials placed on record, and particularly on comprehending the nature, seriousness, and gravity of the accusations levelled against the petitioner, prima facie there are incriminating materials to substantiate the petitioner’s involvement in the crime, the specific overt act alleged against the petitioner that he attacked the de-facto complainant with a chopper, that the petitioner’s _B.A.No.5036/2024_ _-:8:-_ custodial interrogation is necessary, and the recovery is to be effected, I am not satisfied that the petitioner has made out valid to invoke the any ground discretionary 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. Resultantly, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/23.07.24 //True copy// P.A. To Judge