Ajimon M.A. and Muhammed Jaber v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 11[TH] DAY OF JUNE 2024 / 21ST JYAISHTA, 1946** **BAIL APPL. NO. 3689 OF 2024** **CRIME NO.814/2024 OF MUVATTUPUZHA POLICE STATION, ERNAKULAM** ## **PETITIONERS/ACCUSED:** - **1 AJIMON M.A, AGED 50 YEARS S/O ABDUL KADER,MUNDATTU, RANDAR, MARADY (PARTY), ERNAKULAM,KERALA, PIN - 686673** - **2 MUHAMMED JABER, AGED 22 YEARS PATTAMMAKUDIYIL, KIZHAKKERKKARA, MUVATTUPUZHA,MARADY (PART), ERNAKULAM,KERALA, PIN - 686661 BY ADVS. KAVERI MOHAN MATHEW A KUZHALANADAN KURIAKOSE VARGHESE V.SHYAMOHAN SRADHAXNA MUDRIKA BINCY JOB** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 STATION HOUSE OFFICER, MUVATTUPUZHA POLICE STATION,PUZHAKKARAKKAVU ROAD, MUVATTUPUZHAM,ERNAKULAM, KERALA,, PIN - 686661** - **3 RAHUL E.B, S/O BHADRAN, EDAPPARAMBIL HOUSE, KAVANA, VAZHAKULAM P.O, MOOVATTUPUZHA, AVOLY, ERNAKULAM DISTRICT (IMPLEADED AS ADDL R3 AS PER ORDER DTD 14/5/24 IN CRL MA 1/24)** B.A.No.3689 of 2024 -:2:- **BY ADVS. SAIPOOJA S.R.PRASANTH** ## **OTHER PRESENT:** **SR PP SRI C SS HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.3689 of 2024 -:3:- Dated this the 11[th] day of June, 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 petitioners are the accused 1 and 2 in Crime No.814/2024 of the Muvattupuzha Police Station, Ernakulam, registered against the accused for allegedly committing the offences punishable under Sections 341, 324 and 326 r/w Section 34 of the Indian Penal Code (in short, IPC). 3. The gist of the prosecution case is that: on 23.4.2024, the accused along with 50 other persons, in furtherance of their common intention to disturb the road show of LDYF related to the Lok Sabha election 2024, the first accused shouted to hit the de facto complainant and the second accused used a stick to hit B.A.No.3689 of 2024 -:4:- on the face of the de facto complainant, and the de facto complainant suffered a fracture on his chin and also grievous injuries. Thus, the accused have committed the above offences. 4. Heard; Sri.Kaveri Mohan, the learned counsel appearing for the petitioners, Sri.C.S.Hrithwik., the learned Senior Public Prosecutor and Smt. Saipooja, the learned counsel appearing for the third respondent/ de facto complainant. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of Annexure A1 FIR would substantiate that the offence under Section 326 of the IPC will not be attracted against the petitioners. The Investigating Officer has deliberately incorporated the said offence to deny bail to the petitioners. The petitioners’ custodial is not and no interrogation necessary B.A.No.3689 of 2024 -:5:- recovery is to be effected. Therefore, the petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. He made available the accident register cum wound certificate of the injured/de facto complainant dated 23.4.2024 issued by the General Hospital, Thodupuzha to substantiate the fact that the de facto complainant’s tooth was broken and he suffered a lacerated wound over his chin. He stated that the specific overt act is attributed against the second accused, who acted upon the instructions of the first accused and hit on the face of the de facto complainant, whose tooth was broken. He submitted that the first accused is a person with criminal antecedents, since he is involved in three other crimes of Muvattupuzha Police Station. The petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order B.A.No.3689 of 2024 -:6:- pre-arrest bail, it may hamper the investigation. Hence, the application may be dismissed. 7. The learned counsel appearing for the third respondent also opposed the application. The third respondent has filed a bail objection report, inter alia, contending that the petitioners are persons with criminal antecedents. The first petitioner was included in the rowdy list. The petitioners have caused grievous injuries to the de facto complainant so as to attract the offence under Section 326 of the IPC. If the petitioners are granted an order of pre-arrest bail, they may intimidate the witnessess and tamper with evidence. Hence, the application may be dismissed. 8. On an analysis of the materials on record, it can be gathered that the specific overt act is only attributed against the second accused, who hit the de facto complainant with a stick and the de facto complainant’ s tooth was broken and he suffered a B.A.No.3689 of 2024 -:7:- wound on his chin. The overt act alleged against the first accused/first petitioner is that, he shouted to hit the de facto complainant. The only non-bailable offence alleged against the petitioners is under Section 326 of the IPC. Going by the allegations made against the petitioners, the said offence can only be attributed against the second petitioner, which stands prima facie corroborated by the accident register cum wound certificate. Nonetheless, that is a matter to be investigated and decided at the time of trial. However, I am of the definite view that since there is no specific overt act alleged against the first petitioner, he is entitled to an order of pre-arrest bail. On the contrary, the specific overt act is alleged against the second petitioner, I am not inclined to grant an order of prearrest bail to him. 9. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable B.A.No.3689 of 2024 -:8:- 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 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 B.A.No.3689 of 2024 -:9:- 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” ## 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 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. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, particularly finding that there are prima facie material to substantiate the B.A.No.3689 of 2024 -:10:- involvement of the second petitioner in the above crime so as to attract the offence under Section 326 of the IPC, I am not inclined to allow the bail application of the second petitioner/ second accused. However, I am inclined to allow the application filed by the first petitioner/first accused. In the result, (a) The application filed by the second petitioner/second accused is dismissed. (b) The bail application filed by the first petitioner/ first accused is allowed subject to the following conditions: - (i) The first petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the first petitioner’s arrest, the Investigating Officer shall release the first petitioner on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like amount each; B.A.No.3689 of 2024 -:11:- - (iii) The first petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The first petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The first petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before the said court within the said period; - (vi)The first petitioner shall not get involved in any other offence while on bail; - (vii) 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. - (viii)Applications for deletion/modification of the bail B.A.No.3689 of 2024 -:12:- conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the first petitioner even while the first petitioner is 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]. SD/- ## **C.S.DIAS,JUDGE** rmm/11/6/2024