Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 21ST DAY OF MARCH 2024 / 1ST CHAITHRA, 1946 CRIME NO.274/2024 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA PETITIONERS/ACCUSED NO.1 TO 3: 1 ROBIN REJEE AGED 23 YEARS S/O REJEE, EMMANUEL COTTAGE, EYYAMKUNNU, KOTTARAKKARA, KOLLAM., PIN - 691513 2 REJEE MON P AGED 53 YEARS S/O PODIYAN, EMMANUEL COTTAGE, EYYAMKUNNU, KOTTARAKKARA, KOLLAM., PIN - 691513 3 ROSHAN REJEE AGED 21 YEARS S/O REJEE, EMMANUEL COTTAGE, EYYAMKUNNU, KOTTARAKKARA, KOLLAM., PIN - 691513 BY ADVS. M.R.SASITH ANJANA SURESH.E NEELANJANA NAIR RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV SMT. NEEMA T. V. - SENIOR PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C. S. DIAS, J.
-------------------------------------------------------- B.A. No. 1686 OF 2024 ------------------------------------------------------- Dated this the 21st day of March, 2024
ORDER
The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, 'Code'), for an order of pre-arrest bail.
2. The petitioners are the accused 1 to 3 in Crime
No.274/2024 of the Thiruvalla Police Station, Pathanamthitta which is registered against them for allegedly committing the offences punishable under Sections 452, 323, 324 and 326 read with Section 34 of the Indian Penal Code, 1860.
3. The crux of the prosecution allegation is that on 19.02.2024, at around 09.30 hours, the accused in furtherance of their common intention, to cause bodily
harm to Raju and his son Anson, due to their previous animosity with the paternal uncle of the defacto complainant who failed to repay an amount of Rs.15/- lakh to the second accused, had an altercation occurred with the defacto complainant and his family members and the first accused struck the defacto complainant on his face with a weapon and he sustained a nasal born
fracture and a wound on his right cheek. When the same was questioned by the family members of the defacto complainant, the accused 2 and 3 also caused bodily injury to the persons named Anson, Maria, Alan, wife of Alan and Gracy. Thus, the accused have committed the above offences.
4. Heard; Sri. Sasith M. R., the learned counsel appearing for the petitioners and Smt. Neema T. V., the learned Public Prosecutor.
5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The
Investigating Officer has deliberately incorporated Section 326 IPC to deny bail to the petitioners. In fact, the paternal uncle of the defacto complainant owes the second accused an amount of Rs.15/- lakh for which Annexure A2 crime is registered. It is only to get over the said crime, the present case has been registered. In any given case, the petitioners’ custodial 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 contended that the petitioners had trespassed into the house of the defacto complainant’s paternal uncle and assaulted the defacto complainant and all his family members, and caused injuries to all of them. The defacto complainant sustained a nasal bone fracture. She made available the Accident Register cum
Wound Certificate dated 19.02.2024 of the defacto complainant and eight other injured to establish the gravity of the offences committed by the petitioners. He submitted that the petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed.
7. The prosecution allegation is that, the accused,
in furtherance of their common intention, had trespassed into the house of the defacto complainant and assaulted the defacto complainant and his family members, and caused grievous injuries to the defacto complainant and his family members.
8. A reading of the Accident Register cum Wound Certificate of the injured prima facie establishes the involvement of the petitioners in the crime.
9. 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, Cr PC 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 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 xxx”.
10. 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.
11. After bestowing my anxious consideration to the
facts, the rival submissions made across the Bar and materials placed on record, on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioners, especially after going through the Accident Register cum Wound Certificate of the injured, that the petitioners’ custodial interrogation is necessary and recovery is to be effected, I am convinced that the petitioners have 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. Nonetheless, I direct that, if the petitioners
surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall consider the bail application on its merits. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case.
Sd/- C.S.DIAS JUDGE BR APPENDIX OF BAIL APPL. 1686/2024 PETITIONER’S ANNEXURES Annexure A1 THE TRUE COPY OF FIR IN CRIME NO:274/2024 OF THIRUVALLA POLICE STATION, PATHANAMTHITTA DATED 19.02.2024 Annexure A2 THE TRUE COPY OF THE FIR IN CRIME NO.276/2024 IN THIRUVALLA POLICE STATION, PATHANAMTHITTA DATED 19.02.2024 RESPONDENT’S ANNEXURES: NIL