Abdul Gafoor Ke Kepuram and Abdul Noufal K.K. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ## **`TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945`** ## **`BAIL APPL. NO. 46 OF 2024`** ## **`CRIME NO.958/2023 OF KUMBLA POLICE STATION, KASARGOD`** ## **`PETITIONERS:`** ``` 1ABDUL GAFOOR KE KEPURAM AGED 32 YEARS S/O.MOHAMMED KUNHI KE KEPURAM, R/AT. KHADEEJA HOUSE, K.K.PURAM, MOGRAL, KASARAGOD DISTRICT, PIN - 671321 2ABDUL NOUFAL.K.K, AGED 29 YEARS C/O.MOHAMMED.K.K, R/AT. K.K.PURAM HOUSE, K.K.PURAM MOGRAL, KASARAGOD DISTRICT-, PIN - 671321 ``` ``` BY ADVS. UMMUL FIDA C.IJLAL P.PARVATHY R.UDAYA KUMAR ``` ## **`RESPONDENT:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SMT. NEEMA T.V. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ``` ``` ON 16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. NO.46 OF 2024 2 ``` **Dated this the 16[th] day of January, 2024** ## **ORDER** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused 4 and 5 in crime No.958/2023 of Kumbla Police Station, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 324, 326 r/w Section 149 of the Indian Penal Code. 3. The gist of the prosecution case is that; on 18.10.2023 at about 3 a.m., the accused formed an unlawful assembly with a common object of causing grievous hurt to the de facto complainant and in prosecution of their common object, they assembled with deadly weapons such as iron pipes and iron rods and ## **`B.A. NO.46 OF 2024 3`** caused grievous hurt to the de facto complainant. The de facto complainant sustained fractures and other injuries and underwent hospitalization. Thus, the accused have committed the above offences. 4. Heard; Smt. Ummul Fida, the learned counsel appearing for the petitioners and Smt. Neema T.V., the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners have been falsely implicated in the crime. The very fact that the incident occurred on 18.10.2023, but the FIR was registered only on 26.10.2023, itself proves the falsity in the accusation levelled against the petitioners. Moreover, there is no specific overt act against the petitioners. The de facto complainant is a person with criminal antecedents, as he is involved in several other crimes. The petitioners are no way connected with the crime. Hence, the application may be allowed. 6. The learned Public Prosecutor vehemently ## **`B.A. NO.46 OF 2024 4`** opposed the application. She made available the case diary as well as the Accident Register-cum-Wound Certificate. She contended that the petitioners/accused 4 and 5 had hit the de facto complainant with a iron rod and caused injuries to him. The de facto complainant sustained fractures and he was treated in the Government Medical College Hospital, Kannur as an inpatient. The investigation in the case is in progress. The recovery has to be effected. If the petitioners are granted an order of pre-arrest bail, certainly it would affect the proper investigation of the crime. Hence, the application may be dismissed. 7. The prosecution case is that, on 18.10.2023, at about 3 a.m., the accused had formed an unlawful assembly and caused grievous hurt to the de facto complainant. 8. On a perusal of the Treatment Certificate issued by the Government Medical College Hospital, Kannur dated 6.12.2023 and the Accident Register -cum-Wound ## **`B.A. NO.46 OF 2024 5`** Certificate issued by the General Hospital, Kasaragod dated 18.10.2023, it is evident that the de facto complainant was admitted in the Hospital on 19.10.2023 and was discharged only on 23.10.2023. The said certificate shows that the de facto complainant sustained several fractures and grievous injuries. Indisputably, the investigation is in progress. 9. The Honourable Supreme Court in _**Siddharam Satlingappa Mhetre v. State of Maharashtra**_ **, [(2011) 1 SCC 694]** has held as follows:- 111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. ## **`B.A. NO.46 OF 2024 6`** **112.** The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: ( _i_ ) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ( _ii_ ) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; ( _iii_ ) The possibility of the applicant to flee from justice; ( _iv_ ) The possibility of the accused's likelihood to repeat similar or other offences; ( _v_ ) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; ( _vi_ ) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; ( _vii_ ) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; ( _viii_ ) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ( _ix_ ) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; ( _x_ ) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there ## **`B.A. NO.46 OF 2024 7`** being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. **126.** We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. ## 10. The Honourable Supreme Court in **Gurbaksh Singh Sibbia v. State of Punjab,** [(1980) 2 SCC 565] ## has held as follows:- **21.** The High Court says in its fourth proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a “special case” for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not “unguided or uncanalised”, the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special case” for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a “special case”. We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its ## **`B.A. NO.46 OF 2024 8`** intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 11. After bestowing my anxious consideration to the materials placed on record, particularly, the Accident Register-cum- Wound Certificate, the nature, seriousness and the gravity of the accusation levelled against the petitioners, that the investigation in the case is still in progress and that the custodial interrogation of the petitioners is necessary for the proper investigation of the crime, I am of the definite view that this is not a fit case to exercise the extraordinary powers of this Court under Section 438 of the Cr.P.C. Therefore, I am not inclined to grant an order of pre-arrest bail to the petitioners. Resultantly, the application is dismissed, by observing that it would be up to the petitioners to ## **`B.A. NO.46 OF 2024 9`** surrender before the Investigating Officer within 10 days from today, then the petitioners shall be interrogated and, thereafter, they shall be produced before the jurisdictional Magistrate on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. If the petitioners does not surrender before the Investigating Officer as directed above, the Investigating Officer will be at liberty to arrest the petitioners as if no order has been passed in this case. **SD/-** ## **C.S.DIAS, JUDGE** rmm16/1/2024