Kerala High Court

Vipinson vs The State Of Kerala on 21 May, 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
    TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                    BAIL APPL. NO. 3938 OF 2024
CRIME NO.366/2024 OF POOVAR POLICE STATION, THIRUVANANTHAPURAM
AGAINST   THE ORDER/JUDGMENT   DATED IN   FIR NO.366     OF 2024   OF
JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEYYATTINKARA
PETITIONER/ACCUSED:

           VIPINSON
           AGED 28 YEARS
           (WRONGLY STATED IN THE FIR AS BIBIN CHAND), S/O
           JESPIN FERNANDEZ, ERIKKALUVILA, POOVAR, POOVAR P.O.,
           THIRUVANANTHAPURAM, PIN - 695505

           BY ADVS.
           R.T.PRADEEP
           P.BIJIMON
           M.BINDUDAS
           ABIN P. SHAJU
           SURAJ S. KUMAR
           NIRANJAN T. PRADEEP



RESPONDENT:

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


OTHER PRESENT:

           SR PP SRI C S HRITHWIK




     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A. NO.3938 of 2024
                                  2




          Dated this the 21st day of May, 2024

                             ORDER

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 sole accused in Crime

No.366/2024 of the Poovar Police Station,

Thiruvananthapuram registered against him for allegedly

committing the offences punishable under Sections

294(b), 341, 324 and 308 of the Indian Penal Code.

3. The crux of the prosecution case is that; on

27.4.2024, at around 19.15 hours, the accused had

visited Leela Bar at Poovar and hurled obscene words at

the de facto complainant and attempted to hit him on his

head with a beer bottle. It is only because the de facto

complainant warded off the attack with his hand, he did B.A. NO.3938 of 2024

not lose his life. However, he suffered injuries on his

muscle portion of his right hand elbow and his thumb.

Thus, the accused has committed the above offences.

4. Heard; Sri. R.T.Pradeep, the learned counsel

appearing for the petitioner and Sri.C.S.Hrithwik, the

learned Senior Public Prosecutor.

5. The learned counsel appearing for the petitioner

vehemently argued that the petitioner is totally innocent

of the accusations levelled against him. A reading of

Annexure 1 FIR would substantiate that the offence

under Section 308 of IPC will not be attracted in the

facts of the case. The Investigating Officer has

deliberately incorporated the said offence to deny bail to

the petitioner. In fact, on 2.2.2024, the petitioner was

brutally assaulted by the de facto complainant and his

men. It is an aftermath of the said incident, that the

present crime is registered. In any given case, the

petitioner's custodial interrogation is not necessary and B.A. NO.3938 of 2024

no recovery is to be effected. If the petitioner is

arrested by the police, he is apprehensive that he would

suffer custodial torture. Hence, the application may be

allowed.

6. The learned Public Prosecutor seriously

opposed the application. He submitted that there are

incriminating materials against the petitioner to

substantiate that he assaulted the de facto complainant

and to attract the offences registered against him. He

made available the Medicolegal Certificate dated

5.5.2024, to establish the nature of injuries suffered by

the de facto complainant. He has also stated that the

petitioner is a person with criminal antecedents, since he

is the first accused in Crime No.423/2022 of the Poovar

Police Station, registered against the petitioner and

other accused for allegedly committing the predicate

offence under Section 326 of the IPC. Moreover, the

investigation in the case is only at its nascent stage and B.A. NO.3938 of 2024

recovery is to be effected. If the petitioner is granted an

order of pre-arrest bail, it would hamper with the

investigation. Hence, the application may be dismissed.

7. The prosecution allegation against the petitioner

is that, on 27.4.2024 he went to the bar of the de facto

complainant and thrashed him with a beer bottle and

inflicted injuries on his hand. The Medicolegal

Certificate prima facie substantiates the accusation

attributed against the petitioner to be correct. However,

that is a matter to be investigated by the police.

Moreover, it is borne from the materials on record that

the petitioner has criminal antecedents, since he is

involved in a case of similar nature. Furthermore, the

investigation is in the preliminary stage and recovery is

not yet completed.

8. Recently, in Srikant Upadhyay v. State of

Bihar [2024 KHC OnLine 6137] the Honourable

Supreme Court, after referring to all the earlier decisions B.A. NO.3938 of 2024

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, 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 B.A. NO.3938 of 2024

of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. 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 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

facts, the rival submissions made across the Bar, and the