Kerala High Court
Lijeesh @ Sajeev vs State Of Kerala on 30 September, 2024
Author: C.S.Dias
Bench: C.S.Dias
2024:KER:72553
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
BAIL APPL. NO. 5512 OF 2024
CRIME NO.842/2023 OF THIRUVALLAM POLICE STATION,
THIRUVANANTHAPURAM
PETITIONERS:
1 LIJEESH @ SAJEEV
AGED 39 YEARS
S/O. VALSALA, THOTTAVARAMBIL, PONNUMANGALAM,
MELAMCODE, THIRUVANANTHAPURAM DISTRICT., PIN -
695020
2 AJITH. V.S.,
AGED 27 YEARS
S/O. SREEKUMAR, T.C.49/1153, KNRWA 133,
THIRUVANANTHAPURAM DISTRICT., PIN - 695036
BY ADV SHAJIN S.HAMEED
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:
SR PP SMT SEETHA S
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
30.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.5512/2024
-:2:-
2024:KER:72553
ORDER
Dated this the 30th day of September,2024 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 petitioners are the accused Nos.1 & 3 in Crime No.842/2023 of the Thiruvallam Police Station, Thiruvananthapuram, which is registered against the accused for allegedly committing the offences punishable under Sections 341, 323, 324 & 308 read with Section 34 of the Indian Penal Code, 1860 (in short, 'IPC').
3. The learned counsel appearing for the petitioner submitted that during the pendency of this application, the second petitioner/third accused was arrested on 10.09.2024. Therefore, the application of the second petitioner has turned infructuous. Hence, he is confining the application to that of the first B.A.No.5512/2024 -:3:- 2024:KER:72553 petitioner/first accused.
4. The prosecution case, in a nutshell, is that:
on 02.10.2023, at around 13:45 hours, the accused, in furtherance of their common intention, had wrongfully restrained the de-facto complainant, and the first accused hit him on his head with a hammer; but he warded off the attack, and he suffered an injury on his left cheek. Then, the third accused hit him on his abdomen with a knuckle duster, and he suffered pain.
The accused Nos.2 & 4 beat and kicked him, which caused him pain. Thus, the accused have committed the above offences.
5. Heard; Sri.Shajin S.Hameed, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Senior Public Prosecutor.
6. The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations levelled against them. There is no material B.A.No.5512/2024 -:4:- 2024:KER:72553 to substantiate the petitioners' culpability in the crime. The Investigating Officer has deliberately incorporated Section 308 of the IPC to see that the petitioners are arrested and put behind bars. In fact, the first petitioner had suffered injuries in the same incident at the hands of the de-facto complainant and his friends, and Annexure-B First Information Report has been registered against them. The petitioners do not have any criminal antecedents. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed.
7. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate the culpability of the first petitioner in the above crime. There is a specific overt act alleged against the petitioner, who assaulted the de-facto complainant with a hammer, and he suffered injuries on his face. She stated that the first B.A.No.5512/2024 -:5:- 2024:KER:72553 petitioner's custodial interrogation is necessary and recovery is to be effected for the full-fledged investigation of the crime. Hence, the application may be dismissed.
8. The prosecution allegation is that, the petitioners, along with other accused, had wrongfully restrained the de-facto complainant and the first petitioner had assaulted him with a hammer, and he suffered an injury on his cheek. The second petitioner/third accused has been arrested on 10.09.2024, and B.A.No.7843/2024 filed by him for regular bail is pending consideration.
9. 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 B.A.No.5512/2024 -:6:- 2024:KER:72553 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 of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx"B.A.No.5512/2024 -:7:-
2024:KER:72553
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. On an overall consideration of the facts, rival submissions made across the Bar, and the materials placed on record, particularly on comprehending the nature, seriousness, and gravity of the accusations levelled against the first petitioner, that there are prima facie materials to substantiate the B.A.No.5512/2024 -:8:- 2024:KER:72553 first petitioner's involvement in the crime, that the first petitioner's custodial interrogation is necessary, and that recovery is to be effected, I am not satisfied that the first 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 the application is meritless and is only liable to be dismissed.
Resultantly, the application is dismissed.
Sd/-
C.S.DIAS,JUDGE
DST/30.09.24 //True copy//
P.A. To Judge