Vimal K. v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 4293 OF 2024` ``` CRIME NO.300/2024 OF CHERPULASSERY POLICE STATION, PALAKKAD ``` ## `PETITIONER:` ``` VIMAL K. AGED 18 YEARS S/O.VASUDEVAN K.P. KARUVANPARAMBIL, KUTTIKODE, PALAKKAD, TRIKKATIRI P.O., PALAKKAD DISTRICT., PIN – 679502 ``` ``` BY ADVS.M.SASINDRAN P.K.SUBHASH ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` 2THE STATION HOUSE OFFICER CHERUPULASSERY POLICE STATION , CHERPULASSERY, PALAKKAD DISTRICT, PIN – 679503 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.4293/2024_ _-:2:-_ _Dated this the 6[th] day of June, 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 first accused in Crime No.300/2024 of the Cherpulassery Police Station, Palakkad, registered against the accused for allegedly committing the offences punishable under Sections 341, 324 & 326 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The crux of the prosecution case is that: on 13.05.2024, at 18.00 hours, the accused, out of their previous animosity towards the de-facto complainant, hit him on his head with an iron rod and he suffered grievous injuries. Thus, the accused have committed the above offences. ## _B.A.No.4293/2024_ ## _-:3:-_ 4. Heard; Sri. M. Sasimdran, 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 accusations levelled against him. A reading of Annexure-AI First Information Report would substantiate that the offence under Section 326 of the IPC will not be attracted. The Investigating Officer has deliberately incorporated the said offence for the purpose of denying bail to the petitioner. In any given case, the petitioner's custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the _B.A.No.4293/2024_ ## _-:4:-_ investigation is in progress. She also stated that there is a specific overt act alleged against the petitioner, for hitting the de-facto complainant with an iron rod on his head, and he suffered comminuted depressed fracture on the left side of his parietal bone. She made available the scan report of the Valluvanad Hospital Complex Limited, Ottapalam, dated 14.05.2024, to substantiate her assertion. She stated that the petitioner's custodial interrogation is necessary, and recovery is to be effected. If the petitioner is granted an order of prearrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that he hit the de-facto complainant with an iron rod, and the de-facto complainant suffered a grievous head injury. The said accusation prima-facie stands corroborated by the scan report that has been _B.A.No.4293/2024_ ## _-:5:-_ handed over to this Court. Nonetheless, that is a matter to be investigated and decided at the time of trial. Yet, the accusation levelled against the petitioner stands corroborated by the treatment record produced before this Court. 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). _B.A.No.4293/2024_ ## _-:6:-_ ## 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 an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after _B.A.No.4293/2024_ ## _-:7:-_ 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, especially on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, particularly after going through the treatment records of the injured and prima-facie finding the accusations levelled against the petitioner to be true, that the petitioner’s custodial interrogation is necessary, and recovery is to be effected, I am not satisfied that the petitioner has made out any exceptional ground to invoke the discretionary jurisdiction of this Court _B.A.No.4293/2024_ ## _-:8:-_ 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. 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/06.06.24 //True copy// P.A. To Judge