Kerala High Court
Vipin vs State Of Kerala on 17 October, 2024
Author: C.S.Dias
Bench: C.S.Dias
2024:KER:77355
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
BAIL APPL. NO. 7206 OF 2024
CRIME NO.1201/2024 OF KUNDARA POLICE STATION, KOLLAM
PETITIONER:
VIPIN,
AGED 25 YEARS
S/O. ANSALAM, BINU BHAVAN, NANDIRIKKAL, VELLIMON P.O,
KUNDARA, KOLLAM, PIN - 691511
BY ADVS. PRATHEESH.P
ANJANA KANNATH
MARIYA JOSE
RESPONDENT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 STATION HOUSE OFFICER,
KUNDARA POLICE STATION, KOLLAM DISTRICT, PIN - 691504
OTHER PRESENT:
SR PP SMT PUSHPATHA M K
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
17.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.7206/2024
-:2:-
2024:KER:77355
ORDER
Dated this the 17th day of October,2024
The application is filed under Section 482 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (in short,
'BNSS'), for an order of pre-arrest bail.
2. The petitioner is the sole accused in Crime
No.1201/2024 of the Kundara Police Station, Kollam,
which is registered against him for allegedly
committing the offences punishable under Sections
296(b), 115(2), 118(1), 118(2) & 109 of the Bharatiya
Nyaya Sanhita, 2023.
3. The prosecution case, in brief, is that: on
28.07.2024, at around 18:30 hours, the accused
attacked the first informant with a chopper by striking
on his left side of his head and attempted to murder
him. Thus, the accused has committed the above
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offences.
4. Heard; Sri. Pratheesh.P, the learned counsel
appearing for the petitioner and Smt. Pushpalatha
M.K., 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. There is no material
to substantiate the petitioner's culpability in the crime.
The petitioner's custodial interrogation is not
necessary, and no recovery is to be effected. Hence,
the petitioner may be granted an order of pre-arrest
bail.
6. The learned Public Prosecutor opposed the
application. She submitted that there are incriminating
materials to substantiate the petitioner's complicity in
the crime. She made available the accident
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register-cum-wound certificate of the de-facto
complainant dated 28.07.2024, issued by the Taluk
Hospital, Kundara, to substantiate that the de-facto
complainant suffered an incised wound on the left side
of his forehead measuring 3x1x1 cms and had profuse
bleeding. Moreover, the petitioner has criminal
antecedents since he is involved in two other crimes.
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 hamper
the full and proper investigation of the case. Hence,
the application may be dismissed.
7. The prosecution allegation against the
petitioner is that he attacked the first informant with a
chopper by striking him the left side of his head and
attempted to murder him. On a perusal of the accident
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register-cum-wound certificate referred to above,
prima facie, I find that there are corresponding injuries
on the de-facto complainant which makes the
prosecution case probable. Nonetheless, these are
matters to be investigated and ultimately decided after
trial.
8. 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
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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"
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
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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.
10. On an overall consideration of the facts,
rival submissions made across the Bar, and the
materials placed on record, especially on considering
the fact that there are prima facie materials to
substantiate the petitioner's involvement in the crime,
that the petitioner's custodial interrogation is
necessary, and that recovery is to be effected, I am not
convinced that the petitioner has made out any valid
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ground to invoke the discretionary jurisdiction of this
Court under Section 482 of the BNSS. The application
is meritless and it is only to be rejected.
Resultantly, the application is dismissed.
Sd/-
C.S.DIAS,JUDGE
DST/17.10.24 //True copy//
P.A. To Judge
