Vishnu Prathap and Udhish S Chandar 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. 1488 OF 2024 ``` ``` CRIME NO.93/2024 OF ELAMAKKARA POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.345 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM PETITIONER/ACCUSED 1 & 2: ``` - **`1 VISHNU PRATHAP, AGED 20 YEARS S/O PRATHAPACHANDRAN PILLAI, ROHINI, THEVALAPPURAM, PUTHUR,KOLLAM DISTRICT, PIN - 691507`** - **`2 UDHISH S CHANDAR, AGED 23 YEARS`** ``` S/O T.M.SATHISH CHANDAR,THUNDATHIL THEKKETHIL HOUSE, PUTHUPPALLY SOUTH,PUTHUPPALLY.P.O, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN - 609527 ``` ``` BY ADVS. T.P.SANTHOSH KUMAR C.H.ABDUL RASAC ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.1488 of 2024** ``` 2 ``` ## **Dated this the 18[th] day of March, 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 petitioners are the accused 1 and 2 in Crime No.93/2024 of the Elamakkara Police Station, Ernakulam, registered against the accused for allegedly committing the offences punishable under Sections 324, 308 and 294(b) r/w Section 34 of the Indian Penal Code. 3. The gravamen of the prosecution case, is that; on 27.01.2024, at around 22.45 hours, the accused pushed the chair of the de facto complainant while he was seated at the Karthika Bar, Edappally. Thereafter, the first accused hit on the head of the de facto complainant with a wooden stick and the second accused humiliated ``` 3 ``` ## **B.A. No.1488 of 2024** him by hurling abusive words. Had the de facto complainant not evaded the blow, he would have lost his life. Thus, the accused have committed the above offences. 3. Heard Sri. Santhosh Kumar T.P., learned counsel appearing for the petitioners and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. They have been falsely implicated in the crime. A reading of the First Information Report and the First Information Statement would substantiate that offence under Section 308 will not be attracted. Even going by the prosecution case, the accused had not used any dangerous weapons, so as to cause any grievous injury to the de facto complainant. The petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, **B.A. No.1488 of 2024** ``` 4 ``` the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. He submitted that the first accused had hit the de facto complainant on his head with a wooden reaper and a beer bottle. He made available the Accident Register cum Wound Certificate of the de facto complainant issued by the M.A.J.Hospital, Edappally, Kochi dated 27.1.2024, to substantiate the fact that the first accused had hit the de facto complainant with a beer bottle on his scalp and he suffered a deep lacerated wound on the left parietal temporal region and suffered a deep injury measuring 15x3x2 cm. Nine sutures had to be put to heal the wound. The first petitioner’s custodial interrogation is necessary and recovery is to be effected. Nonetheless, he agreed to the fact that there is no specific overt act alleged against the second petitioner, except the fact that he hurled abusive words at the de fact complainant. **B.A. No.1488 of 2024** ``` 5 ``` 6. The crux of the prosecution case is that, the first accused in furtherance of the common intention between the accused, had hit the de facto complainant with a wooden stick and a beer bottle on his head and he suffered grievous injuries as evidenced from the Accident Register cum wound certificate. The second accused hurled abusive words at the de facto complainant. 7. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court after referring to the earlier decisions on the point has made the following observations:- “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.1488 of 2024** ``` 6 ``` “9. When a Court grants anticipatory bail what it actually does is only to make an order that in the event of arrest, the arrestee shall be released on bail, subject to the terms and conditions. Taking note of the fact the said power is to be exercised in exceptional circumstances and that it may cause some hinderance to the normal flow of investigation method when called upon to exercise the power under S.438, CrPC, courts must keep reminded of the position that law aides only the abiding and certainly not its resistant. By saying so, we mean that a person, having subjected to investigation on a serious offence and upon making out a case, is included in a charge sheet or even after filing of a refer report, later, in accordance with law, the Court issues a summons to a person, he is bound to submit himself to the authority of law. It only means that though he will still be at liberty, rather, in his right, to take recourse to the legal remedies available only in accordance with law, but not in its defiance. We will dilate this discussion with reference to the factual matrix of this case. However, we think that before dealing with the same, a small deviation to have a glance at the scope and application of the provisions under S.82, CrPC will not be inappropriate. **==> picture [125 x 49] intentionally omitted <==** 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 **B.A. No.1488 of 2024** ``` 7 ``` 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. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre - arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant.” 8. Similarly, 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 ``` 8 ``` ## **B.A. No.1488 of 2024** 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. 9. 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, seriousness and gravity of the accusations levelled against the first petitioner, that he was the one who allegedly caused serious injuries to the de facto complainant, I am of the view that the first petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I am not inclined to allow the bail application filed by the first accused. On the contrary, taking into account the fact that there is no specific overt act alleged against the second petitioner, with respect to ``` 9 ``` ## **B.A. No.1488 of 2024** non bailable offence under Section 308 of the IPC, and that he had only hurled abusive words at the de facto complainant, which is a bailable offence, I am of the view that the second petitioner is entitled to an order of prearrest bail. In the result, - (a) The application filed by the first petitioner is - dismissed. - (b) The application filed by the second petitioner is - allowed subject to the following conditions: i) The second petitioner is directed to surrender before the Investigating Officer within one week from today. ii) In the event of the second petitioner’s arrest, the Investigating Officer shall produce him before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the second petitioner on bail on him executing a ``` 10 ``` ## **B.A. No.1488 of 2024** bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; iv) The second petitioner shall co-operate with the investigation and make himself available for interrogation as and when directed by the Investigating Officer ; v). The second petitioner shall not intimidate witnesses or interfere with the investigation in any manner; vi). The second petitioner shall not get involved in any other offence while on bail. vii). In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. viii). Applications for deletion/modification of the ``` 11 ``` ## **B.A. No.1488 of 2024** bail conditions shall also be filed before the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the second petitioner even while the second petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].** ``` SD/- ``` **C.S.DIAS, JUDGE** ``` rmm/18/3/2024 ```