Kerala High Court
Adwaith J.R vs State Of Kerala on 11 April, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
BAIL APPL. NO. 2905 OF 2024
CRIME NO.306/2024 OF KAZHAKKUTTOM POLICE STATION,
THIRUVANANTHAPURAM
PETITIONER:
ADWAITH J.R
AGED 19 YEARS
, S/O JOY SUNDER, RESIDING AT VARUVILA,
S.N NAGAR, KULATHOOR
THIRUVANANTHAPURAM, PIN - 695132
BY ADVS. BHARATH V GOPAL
THEJAN RAJ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA ERNAKULAM,
PIN - 682031
2 THE SUB INSPECTOR OF POLICE
KAZHAKOOTAM POLICE STATION,
THIRUVANANTHAPURAM., PIN - 695022
OTHER PRESENT:
SR PP SMT NEEMA T V
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.2905/2024
-:2:-
Dated this the 11th day of April, 2024
ORDER
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 seventh accused in Crime
No.306/2024 of the Kazhakkuttom Police Station,
Thiruvananthapuram, registered against the accused
(seven in number) for allegedly committing the
offences punishable under Sections 367, 395, 506, 323,
324 & 326 of the Indian Penal Code, 1860.
3. The essence of the prosecution case, is that:
on 02.03.2024, at about 10.30 hours, the accused
Nos.1 to 3, in furtherance of their common intention,
forcefully took the de-facto complainant in a car, to the
Kazhakkuttom Government College, and all the
accused together attacked with dangerous weapons..
The accused Nos.1 to 6 hit him all over his body, using
aluminium rods, and the seventh accused hit him with
a nunchaku on his face and he lost two teeth and
suffered other injuries. The third accused threatened
the de-facto complainant, and robbed his mobile phone
and ATM card and, subsequently, withdrew Rs.2,000/-
from his bank account. Thus, the accused have
committed the above offences.
4. Heard; Sri. Bharath V Gopal, 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. He has been falsely
implicated in the crime. A reading of Annexures-A3 &
A4 would show that there is a previous animosity
between the petitioner and the de-facto complainant.
It is only to wreak vengeance on the petitioner, the
de-facto complainant has deliberately alleged that the
petitioner hit him with a nunchaku on his face and
caused grievous injuries to him. In any given case, the
petitioner's custodial interrogation is not 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 there is a specific overt
act alleged against the petitioner for having hit the
de-facto complainant with a nunchaku on his face, and
he lost two teeth in the incident and also suffered
grievous injuries. A reading of the FIR would
substantiate that there is a specific overt act alleged
against the petitioner. 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 with the
investigation. Hence, the application may be dismissed.
7. On an evaluation of Annexure-A1 First
Information Report, it can be gathered that there is a
specific overt act alleged against the petitioner for
having hit the de-facto complainant with a nunchaku
on his face, and he lost two teeth and suffered grievous
injuries.
8. 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.
9. 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).
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. ..... ......"
11. After bestowing my anxious consideration to
the facts, rival submissions made across the Bar and
the materials placed on record, especially on
comprehending the nature, gravity, and seriousness of
the accusations leveled against the petitioner, that the
petitioner's custodial interrogation is necessary, that
the recovery is to be effected, and that the
investigation in the case is only at a nascent stage, I
am convinced that the petitioner has not made out any
exceptional grounds to invoke the extraordinary
jurisdiction of this Court under Section 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 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.
Sd/-
C.S.DIAS,JUDGE
DST/11.04.24 //True copy//
P.A. To Judge
