Petitioner sought anticipatory bail for offences including Section 308 IPC arising from an assault on a bar owner with a beer bottle. Considering his criminal antecedents, the nascent stage of investigation, need for recovery and custodial interrogation, the court held no exceptional grounds existed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
BAIL APPL. NO. 3938 OF 2024
CRIME NO.366/2024 OF POOVAR POLICE STATION, THIRUVANANTHAPURAM
AGAINST THE ORDER/JUDGMENT DATED IN FIR NO.366 OF 2024 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEYYATTINKARA
PETITIONER/ACCUSED:
VIPINSON
AGED 28 YEARS
(WRONGLY STATED IN THE FIR AS BIBIN CHAND), S/O
JESPIN FERNANDEZ, ERIKKALUVILA, POOVAR, POOVAR P.O.,
THIRUVANANTHAPURAM, PIN - 695505
BY ADVS.
R.T.PRADEEP
P.BIJIMON
M.BINDUDAS
ABIN P. SHAJU
SURAJ S. KUMAR
NIRANJAN T. PRADEEP
RESPONDENT:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
OTHER PRESENT:
SR PP SRI C S HRITHWIK
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Dated this the 21st day of May, 2024
O R D E R
The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail.
2.The petitioner is the sole accused in Crime No.366/2024 of the Poovar Police Station, Thiruvananthapuram registered against him for allegedly committing the offences punishable under Sections 294(b), 341, 324 and 308 of the Indian Penal Code.
visited Leela Bar at Poovar and hurled obscene words at the de facto complainant and attempted to hit him on his head with a beer bottle. It is only because the de facto complainant warded off the attack with his hand, he did
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not lose his life. However, he suffered injuries on his muscle portion of his right hand elbow and his thumb. Thus, the accused has committed the above offences.
appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.
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no recovery is to be effected. If the petitioner is arrested by the police, he is apprehensive that he would suffer custodial torture. Hence, the application may be allowed.
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recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed.
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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 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
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of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx”
After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on comprehending the nature, gravity and seriousness of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary and the investigation
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in the case is only at its nascent stage, I am convinced that the petitioner has not made out any exceptional grounds 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
rmm/21/5/2024
1 issue framed by the court
Whether pre-arrest bail under Section 438 CrPC should be granted to the accused in a case of assault with a beer bottle given the gravity of allegations and pending investigation.
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6 provisions across 2 enactments
Vipinson
State of Kerala
C.S. Dias
As recorded by the court registry
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