Yousaf v. State of Kerala

1 Bail Application No. 2651 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2651 OF 2024 ``` ``` CRIME NO.223/2024 OF Kunnathunadu Police Station, Ernakulam PETITIONER/S: ``` ``` YOUSAF AGED 54 YEARS S/O. PAREETH, KUZHUPPILLY HOUSE, CHELAKKULAM, PATTIMATTOM, ERNAKULAM,, PIN - 683562 BY ADVS. ANOOP V.NAIR TANOOSHA PAUL ROHITH C. AVANTHIKA R. ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2THE STATION HOUSE OFFICER, KUNNATHUNADU POLICE STATION ERNAKULAM DISTRICT, PIN - 683565 ``` ``` OTHER PRESENT: ``` ``` PP Smt Shynimol V.O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 2651 of 2024 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No. 2651 of 2024** **-----------------------------------** ## Dated this the 8[th] day of April, 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 first accused in Crime No. 223/2024 of the Kunnathunadu Police Station, Ernakulam, registered against the accused (two in number), for allegedly committing the offences punishable under Sections 341, 294(b), 506, 323, 324, 326 and 307 read with Sec.34 of the Indian Penal Code. 3. The essence of the prosecution case is that: on 8.3.2024 at around 10.30 a.m, the accused, in prosecution of their common intention, wrongfully restrained the de facto complainant and others and criminally intimidated 3 Bail Application No. 2651 of 2024 and abused them. The first accused attacked the de facto complainant with a chopper and he sustained serious injuries on the rear side of his head, right ankle and a fracture on his right leg. The second accused also attacked the de facto complainant with a helmet and kicked him. When the mother of the de facto complainant attempted to intervene, the second accused attacked and caused injuries to her. Thus, the accused have committed the above offences. 4. Heard;Sri.Anoop.V.Nair, the learned counsel appearing for the petitioner and Smt.Shynimol V.O, the learned Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of Annexure-I FIR would substantiate that none of the offence alleged against the petitioner stand attracted. The Investigating Officer has deliberately incorporated Sec.307 and 326 of the IPC to deny bail to the petitioner. The petitioner’s custodial 4 Bail Application No. 2651 of 2024 interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there is a specific overt act alleged against the petitioner. The petitioner had attacked the de facto complainant with a chopper and caused grievous injuries to him. She made available the accident register cum wound certificate of the de facto complainant dated 8.3.2024 issued by the Malankara Orthodox Syrian Church Medical College Hospital, Kolenchery, to demonstrate the nature and 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 sabotage the investigation. Hence, the application may be dismissed. 7. On evaluating Annexure -I FIR and the materials placed on record, it can be seen that there is a specific overt act alleged against the petitioner that he used a chopper to cut the de facto complainant on the rear side of 5 Bail Application No. 2651 of 2024 his head and he suffered injuries on his head, right ankle and a fracture on his right leg. On a perusal of the accident register cum wound certificate of the de facto complainant would show that the de facto complainant had suffered a chop wound of 4 cm x 1 cm x visible bone deep and a chop wound of 2 cm x 2 cm x visible muscle deep, which was present over the back aspect of the left ankle joint . The said certificate prima facie shows the involvement of the petitioner in the crime. 8. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137], the Hon’ble Supreme Court, after referring to the earlier precedents on the point, has succinctly laid down the law 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 6 Bail Application No. 2651 of 2024 in **HDFC Bank Ltd. v. J.J.Mannan & Anr.** , 2010 (1) SCC 679). 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 xxx 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 7 Bail Application No. 2651 of 2024 to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, which stand corroborated by the accident register cum wound certificate of the de facto complainant, that the petitioner’s custodial interrogation is necessary and that the recovery is to be effected, I am convinced that the petitioner has not made out any exceptional ground 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. Consequently, 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 8 Bail Application No. 2651 of 2024 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. **sks/8.4.2024** **`sd/-` C.S.DIAS,JUDGE**