Kerala High Court
Vinayan.A.S vs State Of Kerala on 17 October, 2024
Author: C.S.Dias
Bench: C.S.Dias
2024:KER:77318
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. 6723 OF 2024
CRIME NO.499/2024 OF NARUVAMOODU POLICE STATION,
THIRUVANANTHAPURAM
PETITIONER:
VINAYAN.A.S,
AGED 25 YEARS
S/O.AJI.M.R,CHEMMANNIL MELE PUTHENVEEDU,
NARUVAMOODU.P.O., PALLICHAL, THIRUVANANTHAPURAM, PIN
- 695528
BY ADVS.SUMAN CHAKRAVARTHY
K.R.RIJA
BREJITHA UNNIKRISHNAN
SUDEESH K.E.
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
17.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.6723/2024
-:2:-
2024:KER:77318
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 first accused in Crime
No.499/2024 of the Naruvamoodu Police Station,
Thiruvananthapuram, which is registered against
accused persons for allegedly committing the offences
punishable under Sections 323, 324 & 308 read with
Section 34 of the Indian Penal Code, 1860 (in short,
'IPC').
3. The prosecution case, in brief, is that: on
11.06.2024, at around 21:30 hours, two accused
persons, in furtherance of their common intention, had
wrongfully restrained the de-facto complainant, and
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the first accused attempted to hit him on his head with
an iron rod. It is only because he evaded the attack, he
did not lose his life. Thereafter, the first accused took a
knife from the second accused and stabbed the
de-facto complainant on his face, which he prevented
with his hands. But, he suffered a deep injury on his
hands. Thereafter, the first accused assaulted the
de-facto complainant on his eye, and he suffered a
fracture of his nasal bone. The second accused stabbed
the de-facto complainant on his abdomen and back.
Thus, the accused have committed the above offences.
4. Heard; Sri. Suman Chakravarthy, the learned
counsel appearing for the petitioner and Smt. Seetha
S., the learned Senior Public Prosecutor.
5. The learned counsel for the petitioner
submitted that the petitioner is totally innocent of the
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accusations levelled against him. There is no material
to substantiate the petitioner's culpability in the crime.
The Investigating Officer has deliberately incorporated
Sections 308 of the IPC to see that the petitioner is
arrested and incarcerated. 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 seriously
opposed the application. She submitted that there are
incriminating materials to substantiate the petitioner's
complicity in the crime. The petitioner had assaulted
the de-facto complainant with an iron rod and,
thereafter, stabbed him with a knife. She made
available the accident register-cum-wound certificate
of the de-facto complainant dated 11.06.2024, issued
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by the Government Hospital, to substantiate that the
de-facto complainant had suffered an incised wound on
his face and the right side of his leg. She stated that
the petitioner's custodial interrogation is necessary,
and recovery is to be effected for the full fledged
investigation of the crime. Moreover, the petitioner has
criminal antecedents since he is involved in five other
crimes. The petitioner had filed a similar application
before the Court of Session, Thiruvananthapuram,
which has been dismissed by Annexure-2 order. Hence,
the application may be dismissed.
7. The prosecution allegation is that, the
petitioner and the second accused, had assaulted the
de-facto complainant. The specific overt act is
attributed against the petitioner, who had allegedly
assaulted the de-facto complainant with an iron rod
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and subsequently, attempted to stab him with a knife.
On a perusal of the accident 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. The
petitioner had filed a similar application before the
Court of Session, which has been dismissed by
Annexure-2 order.
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
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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
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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.
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
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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
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
