Vishnu B 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. 5726 OF 2024 ``` ## `CRIME NO.386/2024 OF POTHENCODE POLICE STATION, THIRUVANANTHAPURAM` ## `PETITIONER:` ``` VISHNU B AGED 26 YEARS S/O BINU, PALLIVILA VEEDU, KOYTHOORKONAM, KOYTHOORKONAM P.O, ANDOORKONAM, THIRUVANANTHAPURAM, PIN – 695584 ``` ``` BY ADVS.S.MOHAMMED AL RAFI A.N.SHAJI (MURAMEL) THAJUNA MARIA FRANCIS ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `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.5726/2024_ _-: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 second accused in Crime No.386/2024 of the Pothencode Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offences punishable under Sections 341, 294(b), 323, 324, 326, 506(ii) and 308 read with Section 34 of the Indian Penal Code, 1860. 3. The gist of the prosecution case is that: on 21.03.2024, at around 16.10 hours, the accused, in furtherance of their common intention, had wrongfully restrained the de-facto complainant and indiscriminately assaulted him. The first accused hit the de-facto complainant on his head with a helmet, and he fell down and he suffered a comminuted _B.A.No.5726/2024_ _-:3:-_ fracture of the bilateral nasal bone and also other injuries. The second accused assaulted the de-facto complainant with a sharp-edged weapon, and the third accused hit him with his hands on the head of the de-facto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri.Muhammed Al Rafi.S, 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. A reading of Annexure-A First Information Report [FIR] would substantiate that the specific overt act is only alleged against the first accused. By Annexure-C order this Court has granted the third accused an order of pre-arrest bail. The petitioner is at par with the third accused. The petitioner’s custodial interrogation is not _B.A.No.5726/2024_ _-:4:-_ necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that in Annexure-C order itself, this Court has specifically observed that there are specific overt acts alleged against the accused Nos.1 & 2. The petitioner had assaulted the de-facto complainant with a sharp-edged weapon, and he suffered grievous injuries. Considering that the overt act was only alleged against the accused Nos.1 & 2, this Court granted an order of pre-arrest bail to the third accused. 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 certainly hamper the investigation. Hence, the application may be dismissed. 7. The specific allegation against the petitioner is that he attacked the de-facto _B.A.No.5726/2024_ _-:5:-_ complainant with a sharp-edged weapon and inflicted grievous injuries. Similarly, there is an overt act alleged against the first accused, that has also caused grievous injuries to the de-facto complainant. 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 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.5726/2024_ _-: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 proper application of mind, to decide whether it is a fit _B.A.No.5726/2024_ _-:7:-_ 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 sharp-edged weapon, that the petitioner’s custodial interrogation is necessary, and the recovery is to be effected, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a _B.A.No.5726/2024_ _-:8:-_ 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 the case. Sd/- ## **C.S.DIAS,JUDGE** DST/23.07.24 //True copy// P.A. To Judge