Vipinson v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 21[ST] DAY OF MAY 2024 / 31ST VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 3938 OF 2024 ``` ``` CRIME NO.366/2024 OF POOVAR POLICE STATION, THIRUVANANTHAPURAM AGAINST THE ORDER/JUDGMENT DATED IN FIR NO.366 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEYYATTINKARA PETITIONER/ACCUSED: ``` ``` VIPINSON AGED 28 YEARS (WRONGLY STATED IN THE FIR AS BIBIN CHAND), S/O JESPIN FERNANDEZ, ERIKKALUVILA, POOVAR, POOVAR P.O., THIRUVANANTHAPURAM, PIN - 695505 ``` ``` BY ADVS. R.T.PRADEEP P.BIJIMON M.BINDUDAS ABIN P. SHAJU SURAJ S. KUMAR NIRANJAN T. PRADEEP ``` ## **`RESPONDENT:`** ``` THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. NO.3938 of 2024** ``` 2 ``` ## **Dated this the 21[st] 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 short), for an order of pre-arrest bail. 2.The petitioner is the sole accused in Crime No.366/2024 of the Poovar Police Station, Thiruvananthapuram registered against him for allegedly committing the offences punishable under Sections 294(b), 341, 324 and 308 of the Indian Penal Code. 3. The crux of the prosecution case is that; on 27.4.2024, at around 19.15 hours, the accused had visited Leela Bar at Poovar and hurled obscene words at the de facto complainant and attempted to hit him on his head with a beer bottle. It is only because the de facto complainant warded off the attack with his hand, he did ``` 3 ``` ## **B.A. NO.3938 of 2024** not lose his life. However, he suffered injuries on his muscle portion of his right hand elbow and his thumb. Thus, the accused has committed the above offences. 4. Heard; Sri. R.T.Pradeep, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel appearing for the petitioner vehemently argued that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure 1 FIR would substantiate that the offence under Section 308 of IPC will not be attracted in the facts of the case. The Investigating Officer has deliberately incorporated the said offence to deny bail to the petitioner. In fact, on 2.2.2024, the petitioner was brutally assaulted by the de facto complainant and his men. It is an aftermath of the said incident, that the present crime is registered. In any given case, the petitioner’s custodial interrogation is not necessary and **B.A. NO.3938 of 2024** ``` 4 ``` no recovery is to be effected. If the petitioner is arrested by the police, he is apprehensive that he would suffer custodial torture. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that there are incriminating materials against the petitioner to substantiate that he assaulted the de facto complainant and to attract the offences registered against him. He made available the Medicolegal Certificate dated 5.5.2024, to establish the nature of injuries suffered by the de facto complainant. He has also stated that the petitioner is a person with criminal antecedents, since he is the first accused in Crime No.423/2022 of the Poovar Police Station, registered against the petitioner and other accused for allegedly committing the predicate offence under Section 326 of the IPC. Moreover, the investigation in the case is only at its nascent stage and ``` 5 ``` ## **B.A. NO.3938 of 2024** recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that, on 27.4.2024 he went to the bar of the de facto complainant and thrashed him with a beer bottle and inflicted injuries on his hand. The Medicolegal Certificate prima facie substantiates the accusation attributed against the petitioner to be correct. However, that is a matter to be investigated by the police. Moreover, it is borne from the materials on record that the petitioner has criminal antecedents, since he is involved in a case of similar nature. Furthermore, the investigation is in the preliminary stage and recovery is not yet completed. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions **B.A. NO.3938 of 2024** ``` 6 ``` ## 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 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 **B.A. NO.3938 of 2024** ``` 7 ``` 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 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. After bestowing my anxious consideration to the facts, the 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 the investigation ``` 8 ``` ## **B.A. NO.3938 of 2024** in the case is only at its nascent stage, I am convinced that the petitioner has not made out any exceptional grounds 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. Resultantly, the bail application is dismissed. **SD/C.S.DIAS, JUDGE** **rmm/21/5/2024**