Haris, Munavar, Majeed and Rafeeq v. State of Kerala

## **`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. 2049 OF 2024 ``` ``` CRIME NO.65/2024 OF Kunnamkulam Police Station, Thrissur ``` ``` AGAINST THE ORDER DATED 04.03.2024 IN CRMC NO.186 OF 2024 OF DISTRICT COURT & SESSIONS COURT,THRISSUR PETITIONERS: ``` - **`1 HARIS, AGED 36 YEARS`** ``` S/O KUNJIPPALU, KAMMALA MURIYIL, VILLANNUR, PAZHANJI, KUNNAMKULAM, THRISSUR DISTRICT, PIN - 680542 ``` - **`2 MUNAVAR, AGED 26 YEARS`** ``` S/O MUSTHAFA, VALIYAKATH (H), VILLANNUR, PAZHANJI, KUNNAMKULAM, THRISSUR DISTRICT, PIN - 680542 ``` - **`3 MAJEED, AGED 33 YEARS`** ``` S/O MOIDEEN, PULAKKAL (H), KOTTOL, PAZHANJI, KUNNAMKULAM, THRISSUR DISTRICT, PIN - 680542 ``` - **`4 RAFEEK, AGED 35 YEARS`** ``` S/O ABU, CHAKKARATTAYIL (H), VILLANNUR, PAZHANJI, KUNNAMKULAM, THRISSUR DISTRICT, PIN - 680542 ``` - **`BY ADVS. N.U.HARIKRISHNA MITHUN BABY JOHN`** ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`SR PP SRI C S HRITHWIK`** ## B.A.No.2049 of 2024 -:2:- ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.2049 of 2024 ## -:3:- ## **O R D E R** Dated this the 3[rd] day of April, 2024 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 1 to 4 in Crime No.65/2024 of the Kunnamkulam Police Station, Thrissur, registered against them for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324, 326 and 308 r/w Section 149 of the Indian Penal Code. 3. The essence of the prosecution case is that: on 11.01.2024, at around 16.15 hours, the accused, in prosecution of their intention, formed themselves into an unlawful assembly with deadly weapons, and wrongfully restrained the defacto complainant and his friends. The first accused hit on the face of the defacto complainant B.A.No.2049 of 2024 ## -:4:- using a knuckle duster, and he suffered a nasal bone fracture. Thereafter, the accused repeatedly hit the defacato complainant on his face. It is only because he warded off the attack, he did not lose his life. The other accused also attacked the defacto complainant by hitting him on different parts of his body. Thus, the accused have committed the above offences. 4. Heard; Sri.N.U. Harikrishna, the learned counsel appearing for the petitioners and Smt.Seetha.S., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The offences under Sections 326 and 308 of the IPC will not be attracted against the accused. In any given case, the specific overt act is alleged against the first accused, who assaulted the defacto complainant with a knuckle duster, which B.A.No.2049 of 2024 ## -:5:- resulted in a nasal bone fracture. Therefore, the offences under Sections 308 and 326 of the IPC cannot be attributed against the accused 2 to 4. The petitioners are persons without criminal antecedents. The petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that during the pendency of the bail application, the second accused has been arrested. Therefore, the bail application has to be confined with regard to the accused 1, 3, and 4. She stated that there is a specific overt act alleged against the first accused, who assaulted the defacto complainant with the knuckle duster and caused a nasal bone fracture. She made available the Accident Register-CumWound Certificate of the four injured in the incident issued by the Ansar Hospital, Perumpilavu, dated B.A.No.2049 of 2024 ## -:6:- 22.01.2024 pertaining to the examination conducted on 11.01.2024 to substantiate the fact that the injured named Anshad had suffered a nasal bone fracture. She submitted that the above treatment records will corroborate with the prosecution allegation. She also contended that the first petitioner's custodial interrogation is necessary and recovery is to be effected. If the first accused is granted an order of pre-arrest bail, it would hamper with the full and proper investigation. Nonetheless, she did not dispute the fact that there is no specific overt act alleged against the accused 3 and 4 so as to attract the offences under Sections 326 and 308 of the IPC. 7. On an evaluation of the materials placed on record, it is seen that the specific overt act is alleged against the first accused, who used a knuckle duster and assaulted the defacto complainant, which has resulted in a fracture of his nasal bone. The said accusations of the ## B.A.No.2049 of 2024 ## -:7:- prosecution prima facie stand corroborated with the Accident Register-Cum-Wound Certificate of the injured named Anshad. However, there is no specific allegation as against the accused 3 and 4. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “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 xxxx xxx 10. xxx xxx xxx B.A.No.2049 of 2024 ## -:8:- ## xxx 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 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. ….. …...” ## 9. In **Jai Prakash Singh v. State of Bihar and** **Anr.** [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that an order of a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court ## B.A.No.2049 of 2024 ## -:9:- must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and to misuse his liberty. 10. After bestowing my anxious consideration to the facts, the materials placed on record, and the rival submissions made across the Bar, especially taking into consideration the Accident Register-Cum-Wound Certificate of the injured, Anshad, which prima facie shows that he suffered a nasal bone fracture, which was allegedly inflicted by the first accused, I am convinced that the first accused has not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, the application of the first accused is only to be dismissed. Nonetheless, since there is no specific overt act alleged ## B.A.No.2049 of 2024 ## -:10:- against the accused 3 and 4, and with regard to the commission of offences under Sections 326 and 308 of the IPC, I am of the view that the said accused are entitled to an order of pre-arrest bail. Resultantly; (i) The application filed by the first accused is dismissed. (ii) The application filed by the accused 3 and 4 is allowed, subject to the following conditions: i) The accused 3 and 4 are directed to surrender before the Investigating Officer within ten days from today. ii) In the event of the arrest of accused 3 and 4, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the accused 3 and 4 on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; B.A.No.2049 of 2024 ## -:11:- iv) The accused 3 and 4 shall co-operate with the investigation and make themselves available for interrogation as and when the Investigating Officer directs; v). The accused 3 and 4 shall not intimidate the witnesses or interfere with the investigation in any manner; vi). The accused 3 and 4 shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file an affidavit to the effect before the court below on the date of execution of the bond; (vii) The accused 3 and 4 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. B.A.No.2049 of 2024 ## -:12:- x) 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 accused 3 and 4 even while the 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].** Sd/- **C.S.DIAS,JUDGE** mtk/03.04.24 B.A.No.2049 of 2024 ## -:13:- ## **`APPENDIX OF BAIL APPL. 2049/2024`** ``` PETITIONER ANNEXURES Annexure A-1 ``` ``` Annexure A-1A TRUE COPY OF THE F.I.R DATED 12/01/2024 IN CRIME NO. 65/2024 REGISTERED BY KUNNAMKULAM POLICE STATION Annexure A-2A TRUE COPY OF THE F.I.R DATED 13/01/2024 IN CRIME NO. 73/2024 OF KUNNAMKULAM POLICE STATION Annexure A-3A TRUE COPY OF THE ORDER DATED 04/03/2024 IN CRL.M.C NO. 186 OF 2024 ON THE FILES OF THE HON'BLE SESSIONS JUDGE'S COURT, THRISSUR ```