Sasidharan vs State Of Kerala
2024 Latest Caselaw 29429 Ker

Kerala High Court

Sasidharan vs State Of Kerala on 17 October, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                                    2024:KER:77236

            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. 7266 OF 2024

   CRIME NO.1639/2024 OF KOTTARAKKARA POLICE STATION, KOLLAM


PETITIONER:
           SASIDHARAN,
           AGED 61 YEARS
           S/O NADARAJAN, RESIDING AT SOBHANA MANDIRAM,
           KOTTATHALA MURI, NEDUVATHOOR VILLAGE KOTTARAKKARA,
           KOLLAM DISTRICT., PIN - 691506

          BY ADVS. HARISH GOPINATH
                   SURUMI NAZAR


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

    2     SUB INSPECTOR OF POLICE,
          KOTTARAKKARA POLICE STATION, KOTTARAKKARA, KOLLAM,,
          PIN - 691506

    3     N. THULASEEDHARAN,
          S/O NADARAJAN, SANATHANAM VEEDU, NEAR SERVICE
          STATION, PATHADI, KOTTATHALA P.O., NEDUVATHOOR,
          KOLLAM IS IMPLEADED AS PER ODER DATED 01/10/2024 IN
          CRL.M.A.NO.1/2024.


OTHER PRESENT:
           BY ADVS.SAMPATH V. TOMS
                    AMBROSE JUDE DCRUZ
                    SHAHID AZEEZ
           SR PP SMT PUSHPALATHA 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.7266/2024

                                           -:2:-

                                                                    2024:KER:77236


                                     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.1639/2024 of the Kottarakkara Police Station,

Kollam, which is registered against two accused

persons for allegedly committing the offences

punishable under Sections 110, 115(2), 118(1), 126(2),

296(b), 351(2) read with Section 3(5) of the Bharatiya

Nyaya Sanhita, 2023(in short, 'BNS').

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

04.08.2024, at around 09:50 hours, the first accused,

in furtherance of his common intention with the second

accused hit the de-facto complainant with a car and,

thereafter, assaulted him with a stick. The second

accused assisted the first accused in committing the

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above acts. Consequently, the de-facto complainant

suffered a fracture on his leg. Thus, the accused have

committed the above offences.

3. Heard; Sri. Harish Gopinath, the learned

Senior Counsel appearing for the petitioner;

Smt. Pushpalatha M.K., the learned Senior Public

Prosecutor and Sri. Sampath V. Toms, the learned

Senior Counsel appearing for the de-facto

complainant/intervenor.

4. The learned counsel for the petitioner

submitted that the petitioner is innocent of the

accusations levelled against him. There is no material

to substantiate the petitioner's culpability in the crime.

The Investigating Officer has deliberately incorporated

Sections 110 & 118(1) of the BNS under the influence

of the intervenor. There has been a long standing civil

dispute between the parties, which has resulted in

Annexure-A2 judgment. It is out of this dispute that the

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intervenor has filed the present First Information

Report. The petitioner is a senior citizen. He is willing

to abide by any stringent condition that may be

imposed by this Court and co-operate with the

investigation. The petitioner's custodial interrogation is

not necessary, and no recovery is to be effected.

Hence, the application may be allowed.

5. The learned Public Prosecutor seriously

opposed the application. She contended that the

petitioner has criminal antecedents, since he is

involved in Crime No.1439/2016 & 2282/2022 of the

very same Police Station. The petitioner's custodial

interrogation is necessary, and recovery is to be

effected for the proper investigation of the crime.

Hence, the application may be dismissed.

6. The learned counsel appearing for the

intervenor also opposed the application. The intervenor

has filed a bail objection report, inter-alia, contending

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that the entire incident was captured on CCTV cameras

installed at the premises of the de-facto complainant.

The petitioner, who is the younger brother of the

intervenor, had hit the de-facto complainant with a car

and subsequently reversed the car and again assaulted

him with a stick. As a result of the said assault, the

intervenor suffered a fracture on his tibia and was

treated as an inpatient at the Government Taluk

Headquarters Hospital, Kottarakkara, from 04.08.2024

to 07.08.2024. The intervenor has produced the

treatment/discharge certificate dated 09.08.2024,

issued by the said hospital, to substantiate that the

intervenor had suffered a fracture in the said incident.

The petitioner is also an accused in C.C.No.910/2016

and the case stands posted for trial. The petitioner's

custodial interrogation is necessary, and recovery is to

be effected. Hence, the application may be dismissed.

7. The prosecution allegation is that the

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petitioner had hit the intervenor with his car and then

assaulted him with a stick. The intervenor suffered a

fracture on his leg. The said allegation prima facie

stands corroborated by the treatment/discharge

summary, which shows that the intervenor suffered a

fracture on 04.08.2024 and was treated as an inpatient

at the Government Taluk Hospital, Kottarakkara, for a

period of three days. Whether the petitioner has any

culpability in the crime is a matter to be investigated

and ultimately decided after trial. The petitioner had

moved a similar application before the Court of

Session, Kollam, which was dismissed by Annexure-A9

order on the finding that there are prima facie

materials to substantiate the petitioner's involvement

in the crime.

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

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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).

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

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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 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 anxious consideration of the facts,

rival submissions made across the Bar, and the

materials placed on record, and prima facie on finding

that there are sufficient maters to substantiate

2024:KER:77236

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 satisfactory 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