Kerala High Court

Rojimon.M.V @ Roji Mathew vs State Of Kerala on 6 June, 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 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
                      BAIL APPL. NO. 2694 OF 2024
    CRIME NO.317/2024 OF Kalamassery Police Station, Ernakulam
AGAINST   THE   ORDER/JUDGMENT   DATED    IN   CRMC    NO.588    OF   2024   OF
DISTRICT COURT & SESSIONS COURT, ERNAKULAM ARISING OUT OF THE
ORDER/JUDGMENT DATED IN FIR NO.317 OF 2024 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, KAKKANAD
PETITIONER/S:

            ROJIMON.M.V @ ROJI MATHEW
            AGED 43 YEARS
            S/O VARGHESE, MURINGAKATTU CHIRAYIL HOUSE, VEZHPRA.P.O,
            KUTTANAD, ALAPPUZHA DISTRICT, PIN - 689595

            BY ADV R.KISHORE (KALLUMTHAZHAM)



RESPONDENT/S:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            PIN - 682031

    2       STATION HOUSE OFFICER
            AGED 44 YEARS
            KALAMASSERRY POLICE STATION, ERANAKULAM, PIN - 682035


OTHER PRESENT:

            SR PP SRI C S HRITHWIK




     THIS   BAIL   APPLICATION   HAVING    COME   UP    FOR     ADMISSION    ON
06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 2694 OF 2024
                                2

                           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 petitioner is the 2nd accused in Crime

No.317/2024 of the Kalamassery Police Station,

Ernakulam, registered against the accused (seven in

number) for allegedly committing the offences punishable

under Sections 143, 147, 328, 341, 365 and 419 r/w

Section 149 of the Indian Penal Code.

3. The essence of the prosecution case is that: on

10.02.2024, at around 24.30 hours, the accused, in

prosecution of their common intention, formed

themselves into an unlawful assembly and went to

M.M.Metals near the Kalamassery Industrial Estate by

impersonating themselves as officers of the Narcotic Cell.

The 1st accused, who is the brother of the defacto

complainant and was working as the Manager of the

above company owned by the defacto complainant, out of BAIL APPL. NO. 2694 OF 2024

his previous animosity with the defacto complainant

formed an unlawful assembly with accused 2 to 7 and the

accused 2 to 7 wrongfully restrained the defacto

complainant and administered an injection on the defacto

complainant who fell unconscious. Thereafter, they

abducted him and took him to the Nair's Psychiatric

Hospital and admitted him there as an inpatient against

his will. Thus, the accused have committed the above

offences.

4. Heard; Sri. R.Kishore, the learned counsel

appearing for the petitioner and Smt.Seetha S., the

learned Public Prosecutor.

5. The learned counsel for the petitioner strenuously

argued that the petitioner is totally innocent of the

accusations leveled against him. The petitioner has no

complicity in the crime. The petitioner only acted on the

instructions of the Doctor of the hospital to take the

defacto complainant to the hospital. The offence under

Section 365 cannot be attributed against the petitioner.

The petitioner's custodial interrogation is not necessary BAIL APPL. NO. 2694 OF 2024

and no recovery is to be effected. Hence, the petitioner

may be granted an order of pre-arrest bail.

6. The learned Public Prosecutor seriously opposed

the application. She submitted that there are

incriminating materials to establish the petitioner's

involvement in the crime. The petitioner along with the

other accused, in furtherance of their common intention

and out of the previous animosity of the 1 st accused

towards the defacto complainant, his brother, had

wrongfully restrained the defacto complainant,

administered him with an injection, made him

unconscious, abducted him and thereafter admitted him

in the hospital to brandish him as a psychiatric patient.

There are certain pending civil cases between the 1 st

accused and the defacto complainant. It is to get an

advantage in the litigation the 1st accused did the above

act. The petitioner's custodial interrogation is necessary

and recovery is to be effected. The accused have

committed a heinous crime. If an order of pre-arrest bail

is granted, it would certainly hamper the investigation. BAIL APPL. NO. 2694 OF 2024

Hence, the application may be dismissed.

7. On an evaluation of the materials on record, it can

be prima facie deduced that the accused had, in

furtherance of their common intention, allegedly

administered an injection on the defacto complainant,

made him unconscious and got him admitted him in a

psychiatric hospital for the purpose of brandishing him as

a mental patient. The allegations attributed against the

petitioner and the other accused are serious and grave.

There are also materials to prima facie establish the

complicity of the accused in the crime.

8. The petitioner had moved a similar application

before the Court of Session, Ernakulam. By Annexure A2

order, the learned District Judge dismissed the

application on finding that the petitioner's custodial

interrogation is necessary.

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:

BAIL APPL. NO. 2694 OF 2024

"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).

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 BAIL APPL. NO. 2694 OF 2024

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.

After bestowing my anxious consideration to the