Abdul Samad Kanneth and others v. State of Kerala

1 BA No.1468 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 1468 OF 2024 ``` ``` CRIME NO.3/2024 OF Vengara Police Station, Malappuram ``` ## **`PETITIONER/S:`** - **`1 ABDUL SAMAD KANNETH,AGED 58 YEARS,S/O. AHAMMEDKUTTY, KANNETH HOUSE, CHEROOR, KANNAMANGALAM, MALAPPURAM, PIN - 676304`** - **`2 SAKKEER ALI KANNETH,AGED 38 YEARS,S/O. KANNETH KUNJIMUHAMMED, KANNETH HOUSE, CHEROOR, KANNAMANGALAM, MALAPPURAM, PIN - 676304`** - **`3 KAMAL PASHA,AGED 38 YEARS,S/O. MOIDEENKUTTY HAJI, KANNETH HOUSE, CHEROOR, KANNAMANGALAM, MALAPPURAM, PIN - 676304`** - **`4 ABDUL KHADER,AGED 58 YEARS,S/O. MOIDEENKUTTY, KANNETH HOUSE, CHEROOR, KANNAMANGALAM, MALAPPURAM, PIN - 676304`** - **`5 KANNETH KUNJIMUHAMMED @ BAVA,AGED 62 YEARS,S/O. MOIDEENKUTTY HAJI, KANNETH HOUSE, CHEROOR, KANNAMANGALAM, MALAPPURAM, PIN - 676304`** - **`6 ANWAR SADIQUE,AGED 34 YEARS,S/O. KUNJIMUHAMMED,KANNETH HOUSE, CHEROOR, KANNAMANGALAM,MALAPPURAM, PIN - 676304 BY ADVS. P.MOHANDAS (ERNAKULAM),K.SUDHINKUMAR,SABU PULLAN,GOKUL D. SUDHAKARAN,R.BHASKARA KRISHNAN,BHARATH MOHAN,K.P.SATHEESAN (SR.)`** ## **`ESPONDENT/S:`** ``` 1STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE SUB INSPECTOR OF POLICE, VENGARA POLICE STATION, MALAPPURAM DISTRICT, PIN - 676304 3SHAHIDA A.P,W/O HILLER MOHAMMED, PULLATH HOUSE, CHERUR, KANNAMANGALAM BY ADVS. SIDHARTH O.,SUSANTH SHAJI,ALBIN A. JOSEPH, Sr PP Sri C.S Hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ``` ``` ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1468 of 2024 ## **C.S.DIAS,J** ## **====================== BA No.1468 of 2024 ----------------------------------Dated this the 3[rd] day of April, 2024** ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 1 to 6 in Crime No.3/2024 of the Vengara Police Station, Malappuram, registered against them, for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 324, 326 and 149 of the Indian Penal Code (in short, 'IPC'). 3. The essence of the prosecution case is that: on 27.11.2023 at around 10.15 a.m, the accused, in prosecution of their common intention, formed themselves into an unlawful 3 BA No.1468 of 2024 assembly, armed with deadly weapons like iron rods and sticks and they wrongfully confined the husband of the de facto complainant and his brother. The accused hit on the head of the husband of the de facto complainant with an iron rod and caused injuries to his eye, which resulted in privation of his eye sight. The brother of the de facto complainant also suffered injuries. Thus, the accused have committed the above offences. 4. Heard; Sri.K.P Satheesan, the learned Senior Counsel appearing for the petitioners, Sri.C.S Hrithwik, the learned Public Prosecutor and Sri.Susanth Shaji, the learned counsel appearing for the intervenor/de facto complainant. 5. The learned Senior Counsel submitted that a reading of Annexure-II FIR would substantiate that the offence under Section 326 will not be attracted. The Investigating Officer has deliberately incorporated the said offence only to deny bail 4 BA No.1468 of 2024 to the petitioners. In fact, the petitioners have already appeared before the Investigating Officer and their interrogation has been completed. Therefore, the petitioners’ custodial interrogation is not necessary. Likewise, the recovery has also been effected. Moreover, in the countercase registered against the de facto complainant’s relatives, this Court has already granted the accused in crime No.965/2023 an order of pre-arrest bail. The petitioners claim parity with the accused in the counter-case. Therefore, the application may be allowed. 6. The learned Public Prosecutor opposed the application. He made available the discharge certificate of Hiler Muhammed - the husband of the de facto complainant dated 9.1.2024 issued by the Government Medical College Hospital, Kozhikode, to substantiate the fact that the injured had suffered a retinal detachment. He submitted that the accused 1 5 BA No.1468 of 2024 and 6 had hit the two injured with iron rods. The said accused’s custodial interrogation is necessary and recovery is to be effected. Therefore, if the said accused are granted an order of pre-arrest bail, it would hamper the investigation. Nonetheless, he did not dispute the fact that there is no specific overt act alleged against the accused 2 to 5 with regard to committing the offence alleged under Sec.326 of the IPC. He prayed the application may be dismissed. 7. The learned counsel for the intervenor also opposed the application. The intervenor has filed a bail objection report, inter alia, contending that the husband of the intervenor was brutally attacked with an iron rod, which resulted in grievous injuries to his right eye. Based on the said overt act that the present FIR has been registered. He submitted that the petitioners are influential and notorious persons. If they are granted an order of pre-arrest bail, it 6 BA No.1468 of 2024 would certainly torpedo the investigation. Hence, the application may be dismissed. 8. On an evaluation of the materials placed on record, it is evident that there was a case and counter-case registered against the parties in connection with incident that occurred on 27.11.2023. In crime No.965/2023 registered against the husband of the de facto complainant and others, the predicate offence is under Secs 308 of the IPC. By Annexure-I order, this Court, prima facie taking into account the fact that the injured had not suffered any grievous injuries so as to attract the offence under Sec.308 of the IPC, granted the said petitioners an order of pre-arrest bail. In the instant case, which was registered only on 1.1.2024 in connection with the incident that occurred on 27.11.2023, the predicate offence is under Sec.326 of the IPC. 7 BA No.1468 of 2024 9. On an appreciation of the materials placed on record, I find that the principal allegation is against the first accused who used an iron rod and hit the husband of the de facto complainant, which was resulted in his retinal detachment. It is in view of the said injury Sec.326 of the IPC has been incorporated. Therefore, I am of the firm view that the said predicate offence will not be attracted against the other accused. Hence, I hold that the accused 2 to 6 are entitled to an order of pre-arrest bail, and the first accused is not entitled to an order of pre-arrest bail since his custodial interrogation is necessary and recovery is to be effected. 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 8 BA No.1468 of 2024 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. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court 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. **112** . The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature 9 BA No.1468 of 2024 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 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 10 BA No.1468 of 2024 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. 12. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations levelled against the first petitioner/first accused, I am of the firm view that the first petitioner has not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, the application filed by the first petitioner is dismissed. On the contrary, in view of the findings rendered above, I hold that accused 2 to 6 are entitled to an order of pre-arrest bail. 11 BA No.1468 of 2024 In the result, - (i) The application filed by the first petitioner/first accused is dismissed. ii) The application filed by the petitioners 2 to 6/accused 2 to 6 is allowed by directing them to surrender before the Investigating Officer within ten days from today. iii) In the event of their arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. iv) On such production, the jurisdictional court shall release the petitioners 2 to 6 on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; 12 BA No.1468 of 2024 v) The petitioners 2 to 6 shall co-operate with the investigation and make themselves available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; vi). The petitioners shall not intimidate witnesses or interfere with the investigation in any manner; vii). The petitioners shall not get involved in any other offence while on bail. viii). In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. ix). Applications for deletion/modification of the bail conditions shall also be filed before the court below. (x) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter 13 BA No.1468 of 2024 and, if necessary, to effect recoveries on the information, if any, given by the accused 2 to 6 even while they are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. (xi) Any observation made in this order is only for the purpose of deciding the application and the same shall not be construed as an expression on the merits of the case. SD/- Sks/3.4.2024 **C.S.DIAS, JUDGE**