BY AD v. C.J.VARGHESE VINU

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 OTHER PRESENT: SR PP SRI C S HRITHWIK THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.1940/2024 -:2:- Dated this the 19th day of March, 2024 O R D E R 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.9 to 11 in Crime No.149/2024 of Ernakulam Central Police Station, Ernakulam, registered against the accused (14 in number), for allegedly committing the offences punishable under Sections 143,147, 323, 324, 341 & 307 read with Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’).

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

17.01.2024, at around 23.20 hours, the accused Nos.1 to 15 and other identifiable five persons formed an unlawful assembly and in prosecution of their common intention, armed with deadly weapons, restrained the B.A.No.1940/2024 -:3:- de-facto complainant and friends and inflicted injuries on them. Thus, the accused have committed the above offences.

4. Heard: Sri. C.J. Varghese Vinu, the learned counsel appearing for the petitioners and Sri.C.S Hrithwik, the learned Public Prosecutor appearing for the respondent.

5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of Annexure-A1 First Information Report[FIR] as well as Annexure-A5 First Information Statement would substantiate that the offence under Section 307 of the IPC will not be attracted, so far as the petitioners are concerned. The petitioners have been falsely implicated in the crime. By Annexure-A7 order, this Court has granted an order of pre-arrest bail to accused Nos.12 to 14. The petitioners are at par with B.A.No.1940/2024 -:4:- the said accused. In any given case, the petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners are entitled to an order of pre-arrest bail.

6. The learned Public Prosecutor seriously opposed the application. He submitted that there are specific overt acts alleged against the petitioners. Accused No.9 had wrongfully restrained the injured, the accused No.10 had hit the injured with an iron pipe and the accused No.11 had kicked the de-facto complainant and the other injured. He submitted that the petitioners’ custodial interrogation is necessary and recovery is to be effected. The petitioners cannot claim parity with the accused No.12 to 14 who are granted an order of pre-arrest bail by Annexure-A7 order. If the petitioners are granted an order of pre-arrest bail, it would certainly affect the investigation. He made available the accident B.A.No.1940/2024 -:5:- register-cum-wound certificate of the injured to substantiate the serious nature of injuries suffered by the de-facto complainant. He prayed that the application may be dismissed.

7. On an evaluation of the materials placed on record, it is evident that there are specific overt acts alleged against the petitioners. This Court granted an order of pre-arrest bail to the accused Nos.12 to 14, as per Annexure-A7 order, only because there was no specific overt act alleged against them. The petitioners cannot claim parity with the said accused.

8. 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 dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is B.A.No.1940/2024 -:6:- 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).

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 B.A.No.1940/2024 -:7:- 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, the rival submissions made across the Bar and the materials placed on record, especially comprehending the seriousness, gravity, and nature of the offences alleged against the petitioners, the petitioners’ custodial interrogation is necessary and recovery is to be effected, I am convinced that the petitioners have not made out any exceptional grounds B.A.No.1940/2024 -:8:- to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. DST/19.03.24 Sd/- C.S.DIAS,JUDGE //True copy// P.A. To Judge