Pre-arrest bail application in a violent assault case (brick attack on defacto complainant). The petitioner failed to surrender as directed by an interim order. Relying on Supreme Court decisions that anticipatory bail is exceptional, the court held custodial interrogation was necessary and dismissed the application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
BAIL APPL. NO. 3054 OF 2024
CRIME NO.416/2024 OF Karunagapally Police Station, Kollam
PETITIONER/S:
NAZIM. A,
AGED 21 YEARS
S/O LATE ABDUL LATHEEF, RESIDING AT KOTTOOR
VADAKKATHIL, MANAPPALLY P.O, THAZHAVA
VILLAGE,KARUNAGAPALLY, KOLLAM DISTRICT, KERALA, PIN -
690574
BY ADVS.
R.SUDARSANA DEVI
SUKUL KHADER Z.A
RESPONDENT/S:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 6820312 THE STATION HOUSE OFFICER , KARUNAGAPPALLY POLICE STATION, KOLLALM DISTRICT, PIN - 690518OTHER PRESENT:
SR PP SMT SEETHA S
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BA No. 3054 of 2024
2
C.S.DIAS, J.
-------------------------------
B.A.No.3054 of 2024
-----------------------------------
Dated this the 22nd day of May, 2024
O R D E R
The application is filed under Section 438 of the
Code of Criminal Procedure, 1973 (in short,‘Code’),
for an order of pre-arrest bail.
2.The petitioner is an accused in Crime
No.416/2024 of Karunagapally Police Station, Kollam
registered against the accused for allegedly
committing the offences punishable under Sections
294(b), 341, 323, 324, 308 and 506 r/w 34 of the
Indian Penal Code.
3.When the application came up for
consideration on 23.04.2024, this Court passed an
interim order directing the petitioner to surrender
before the Investigating Officer within one week from
the date of the order for subjecting himself to
interrogation, and if during the course of
interrogation, the Investigating Officer arrests the
petitioner, he shall be enlarged on bail.
BA No. 3054 of 2024
3
4.Heard; Smt. R. Sudarsana Devi, the learned
counsel for the petitioner and Smt. Seetha S., the
learned Public Prosecutor.
5.Today, when the application was taken up for
consideration, the learned Public Prosecutor submitted
that despite the order dated 23.04.2024, the
petitioner did not surrender before the Investigating
Officer.
6On an evaluation of the prosecution
allegation, it can be gathered that, on 08.03.2024, at
around 17.45 hours, the accused hit the defacto
complainant on his head using a brick and it was only
because he averted the attack, he did not loose his
life. However, he suffered injuries.
7. Recently, in Srikant Upadhyay v. State of
Bihar [2024 KHC OnLine 6137] the Honourable Supreme
Court, after referring to all the earlier decisions on
the point, has observed in the following lines:
“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
BA No. 3054 of 2024
4
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 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 xxx”.
8. 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
BA No. 3054 of 2024
5
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.
After bestowing my anxious consideration to the
facts, rival submissions made across the Bar and the
materials placed on record, especially on
comprehending the nature, gravity, and seriousness of
the accusations leveled against the petitioner, that
the petitioner’s custodial interrogation is necessary,
that the investigation in the case is only at a
nascent stage and further that the petitioner has
failed to comply with the interim order of this Court.
I am convinced that the petitioner has not made out
any exceptional ground to invoke the extraordinary
jurisdiction of this Court under Sec.438 of the Code.
Hence, I hold that this is not a fit case to grant an
order of pre-arrest bail.
Resultantly, the bail application is dismissed.
Sd/-
C.S.DIAS JUDGE
SM
BA No. 3054 of 2024
6
APPENDIX OF BAIL APPL. 3054/2024
PETITIONER ANNEXURES
Annexure A1THE COPY OF FIR IN CRIME NO 416/2024 OF
KARUNGAPALLY POLICE STATION DATED 9/3/2024
Annexure A2TRUE COPY OF THE SAID ORDER OF THE BAIL APPL.
NO 2117 OF 2024 DATED 22.03.2024
1 issue framed by the court
Whether the petitioner accused of a violent assault is entitled to pre-arrest bail under Section 438 CrPC.
Colour shows how this judgement treated each authority
Srikant Upadhyay v. State of BiharRelied on¶7
Srikant Upadhyay v. State of Bihar [2024 KHC OnLine 6137]
Jai Prakash Singh v. State of Bihar and anotherRelied on¶8
Jai Prakash Singh v. State of Bihar and another, [(2012) 4 SCC 379] · Who else cites this
2 provisions across 2 enactments
Nazim. A
State of Kerala, represented by Public Prosecutor
The Station House Officer, Karunagappally Police Station
C.S.Dias
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court