Kerala High Court
Lijeesh @ Sajeev vs State Of Kerala on 30 September, 2024
Author: C.S.Dias
Bench: C.S.Dias
2024:KER:72553
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
BAIL APPL. NO. 5512 OF 2024
CRIME NO.842/2023 OF THIRUVALLAM POLICE STATION,
THIRUVANANTHAPURAM
PETITIONERS:
1 LIJEESH @ SAJEEV
AGED 39 YEARS
S/O. VALSALA, THOTTAVARAMBIL, PONNUMANGALAM,
MELAMCODE, THIRUVANANTHAPURAM DISTRICT., PIN -
695020
2 AJITH. V.S.,
AGED 27 YEARS
S/O. SREEKUMAR, T.C.49/1153, KNRWA 133,
THIRUVANANTHAPURAM DISTRICT., PIN - 695036
BY ADV SHAJIN S.HAMEED
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
30.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.5512/2024
-:2:-
2024:KER:72553
ORDER
Dated this the 30th day of September,2024
The application is filed under Section 438 of the
Code of Criminal Procedure, 1973('Code', for the sake
of brevity), for an order of pre-arrest bail.
2. The petitioners are the accused Nos.1 & 3 in
Crime No.842/2023 of the Thiruvallam Police Station,
Thiruvananthapuram, which is registered against the
accused for allegedly committing the offences
punishable under Sections 341, 323, 324 & 308 read
with Section 34 of the Indian Penal Code, 1860 (in
short, 'IPC').
3. The learned counsel appearing for the
petitioner submitted that during the pendency of this
application, the second petitioner/third accused was
arrested on 10.09.2024. Therefore, the application of
the second petitioner has turned infructuous. Hence,
he is confining the application to that of the first
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petitioner/first accused.
4. The prosecution case, in a nutshell, is that:
on 02.10.2023, at around 13:45 hours, the accused, in
furtherance of their common intention, had wrongfully
restrained the de-facto complainant, and the first
accused hit him on his head with a hammer; but he
warded off the attack, and he suffered an injury on his
left cheek. Then, the third accused hit him on his
abdomen with a knuckle duster, and he suffered pain.
The accused Nos.2 & 4 beat and kicked him, which
caused him pain. Thus, the accused have committed
the above offences.
5. Heard; Sri.Shajin S.Hameed, the learned
counsel appearing for the petitioners and Smt. Seetha
S., the learned Senior Public Prosecutor.
6. The learned counsel for the petitioners
submitted that the petitioners are innocent of the
accusations levelled against them. There is no material
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to substantiate the petitioners' culpability in the crime.
The Investigating Officer has deliberately incorporated
Section 308 of the IPC to see that the petitioners are
arrested and put behind bars. In fact, the first
petitioner had suffered injuries in the same incident at
the hands of the de-facto complainant and his friends,
and Annexure-B First Information Report has been
registered against them. The petitioners do not have
any criminal antecedents. The petitioners' custodial
interrogation is not necessary and no recovery is to be
effected. Hence, the application may be allowed.
7. The learned Public Prosecutor opposed the
application. She submitted that there are incriminating
materials to substantiate the culpability of the first
petitioner in the above crime. There is a specific overt
act alleged against the petitioner, who assaulted the
de-facto complainant with a hammer, and he suffered
injuries on his face. She stated that the first
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petitioner's custodial interrogation is necessary and
recovery is to be effected for the full-fledged
investigation of the crime. Hence, the application may
be dismissed.
8. The prosecution allegation is that, the
petitioners, along with other accused, had wrongfully
restrained the de-facto complainant and the first
petitioner had assaulted him with a hammer, and he
suffered an injury on his cheek. The second
petitioner/third accused has been arrested on
10.09.2024, and B.A.No.7843/2024 filed by him for
regular bail is pending consideration.
9. Recently, 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
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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 of an individual against
unwarranted arrest and we say that such orders shall be passed in
eminently fit cases. xxx xxx"
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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.
11. On an overall consideration of the facts,
rival submissions made across the Bar, and the
materials placed on record, particularly on
comprehending the nature, seriousness, and gravity of
the accusations levelled against the first petitioner,
that there are prima facie materials to substantiate the
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first petitioner's involvement in the crime, that the first
petitioner's custodial interrogation is necessary, and
that recovery is to be effected, I am not satisfied that
the first petitioner has made out any valid ground to
invoke the discretionary jurisdiction of this Court
under Section 438 of the Code. Hence, I hold that the
application is meritless and is only liable to be
dismissed.
Resultantly, the application is dismissed.
Sd/-
C.S.DIAS,JUDGE
DST/30.09.24 //True copy//
P.A. To Judge
