Ameer Sadique P.P. and Sandeep K. v. State of Kerala

## **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. 4493 OF 2024** **CRIME NO.662/2024 OF Tirur Police Station, Malappuram** **AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.622 OF 2024 OF DISTRICT COURT& SESSIONS COURT,MANJERI PETITIONER/S:** **1 AMEER SADIQUE.P.P AGED 34 YEARS S/O MUHAMMED, PUTHUPARAMBIL HOUSE, PARAPPERI, TRIPRANGODE.P.O., MALAPPURAM, PIN - 676108 2 SANDEEP.K AGED 21 YEARS S/O MANIKANDAN, KANNATHAD HOUSE, POOVATHIPOYIL, VAZHIKKADAVU, MALAPPPURAM, PIN - 679333** **BY ADVS. SACHIN GEORGE ARAMBAN BILAL AHAMED K.P. AMEER SALIM** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 4493 OF 2024 2 ## **O R D E R** The application filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioners are the accused 2 and 3 in Crime No.662/2024 of the Tirur Police Station, Malappuram, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 341, 323, 324 and 308 r/w Section 34 of the Indian Penal Code. 3. The essence of the prosecution case is that: on 22.04.2024, at around 20.40 hours, the accused 1 to 3, wrongfully restrained the defacto complainant and the 1[st] accused inflicted a cut injury on the neck of the defacto complainant with a surgical knife and the 2[nd] accused attacked him with hands and the 3[rd] accused inflicted injury on the left thigh of the defacto complainant with a knife. It is only because the defacto complainant had evaded the attacks, he did not lose his life. Thus, the BAIL APPL. NO. 4493 OF 2024 3 accused have committed the above offences. 4. Heard; Sri. Sachin George Aramban, the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. There is no material to substantiate the petitioners' involvement in the crime. The Investigating Officer has deliberately incorporated Section 308 of the IPC to deny bail to the petitioners. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to substantiate the petitioners' involvement in the crime. She made available the accident register cum wound certificate dated 22.04.2024 issued by the Government District Hospital, Tirur to establish the nature of injury suffered by the defacto BAIL APPL. NO. 4493 OF 2024 4 complainant. She submitted that the 1[st] accused inflicted a serious injury on the neck of the defacto complainant with a surgical blade and the 3[rd] accused inflicted a cut injury on the left thigh of the defacto complainant with a knife. The only allegation against the 2[nd] accused/ 1[st] petitioner is that he assaulted the defacto complainant with his hands. She submitted that the petitioners' custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of prearrest bail, it may hamper the investigation. Hence, the application may be dismissed. 7. On an analysis of the materials on record, it can be seen that there is a specific overt act alleged against the accused 1 and 3 who inflicted injuries on the defacto complainant's neck as well as on his thigh. Prima facie, the accident register cum wound certificate produced by the learned Public Prosecutor, issued by the Government District Hospital, Tirur dated 22.04.2024 corroborates with the prosecution case. The said material, prima facie, shows the involvement of the accused 1 and 3 who have BAIL APPL. NO. 4493 OF 2024 5 inflicted grievous injuries on the defacto complainant. However, that is a matter to be investigated and decided at the time of trial. Nonetheless, there is no specific overt act alleged against the 2[nd] accused. 8. 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 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 BAIL APPL. NO. 4493 OF 2024 6 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”. 9. 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 BAIL APPL. NO. 4493 OF 2024 7 the crime and his liberty is being misused. 10. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, and on prima facie being satisfied of the involvement of the 2[nd] petitioner/3[rd] accused of having inflicted an injury on the left thigh of the defacto complainant so as to attract Section 308 of the IPC, that the 2[nd] petitioner’s/3[rd] accused's custodial interrogation is necessary and recovery is to be effected, I am not inclined to pass an order of pre-arrest bail in his favour. Nonetheless, considering the fact that there is no specific overt act alleged against the 1[st] petitioner/2[nd] accused, I am convinced that he is entitled to an order of pre-arrest bail. In the result: - (1) The application filed by the 2[nd] petitioner/3[rd] accused is dismissed. - (2) The application filed by the 1[st] petitioner/2[nd] accused is allowed subject to the following conditions: BAIL APPL. NO. 4493 OF 2024 **==> picture [7 x 9] intentionally omitted <==** - (i) The 1[st] petitioner/2[nd] accused is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the 1[st] petitioner/2[nd] accused arrest, the Investigating Officer shall release the 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; - (iii) The 1[st] petitioner/2[nd] accused shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The 1[st] petitioner/2[nd] accused 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 1[st] petitioner/2[nd] accused shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his BAIL APPL. NO. 4493 OF 2024 9 release on bail. If he has no passport, he shall file an affidavit to the effect before said court within the said period; - (vi) The 1[st] petitioner/2[nd] accused 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 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 1[st] petitioner/2[nd] accused even while he is on bail as laid down by the Hon'ble Supreme Court in ## **Sushila Aggarwal v. State (NCT of Delhi) And** BAIL APPL. NO. 4493 OF 2024 10 **another** [2020 (1) KHC 663]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- **C.S.DIAS, JUDGE** rkc/11.06.24 BAIL APPL. NO. 4493 OF 2024 11 ## **APPENDIX OF BAIL APPL. 4493/2024** ## **PETITIONER ANNEXURES** **Annexure AI A TRUE COPY OF THE F.I.R IN CRIME NO.662 OF 2024 OF TIRUR POLICE STATION.** **Annexure AII A TRUE COPY OF THE TREATMENT RECORDS. Annexure AIII A TRUE COPY OF THE COMPLAINT DATED 24.04.2024 BEFORE THE SHO, TIRUR. Annexure AIV A TRUE COPY OF THE COMPLAINT DATED 24.04.2024 BEFORE THE SUPERINTENDENT OF POLICE.** **Annexure AV A TRUE COPY OF THE JUDGMENT DATED 21.05.2024 PASSED BY THE SESSIONS COURT, MANJERI.**