JASSIR T.A. v. State of Kerala and Station House Officer, Cherupuzha Police Station, Kannur District

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 BAIL APPL. NO. 1505 OF 2024 ``` ``` CRIME NO.112/2024 OF CHERUPUZHA POLICE STATION, KANNUR ``` ## **`PETITIONER/SOLE ACCUSED:`** ``` JASSIR T.A, AGED 42 YEARS S/O ABDULLA, THALAILLATH HOUSE, PULINGOME, KANNUR DISTRICT, PIN - 670511 ``` ``` BY ADVS. UNNI. K.K. (EZHUMATTOOR) PRAFIN JOSEPH ZACHARIA ``` ## **`RESPONDENTS/STATE:`** ``` 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` 2 STATION HOUSE OFFICER, CHERUPUZHA POLICE STATION, KANNUR DISTRICT, PIN - 670511 ``` ## **`SR PP SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1505 of 2024 ## -:2:- ## Dated this the 13[th] day of March, 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 petitioner is the sole accused in Crime No.112/2024 of the Cherupuzha Police Station, Kannur, registered against him for allegedly committing the offences punishable under Sections 341, 324, 326 and 294(b) of the Indian Penal Code, 1860. 3. The gist of the prosecution case is that: on 08.02.2024, the accused had hit the defacto complainant and his friends named Nabeel and Ashik with a helmet, and caused a fracture of the nasal bone to the defacto complainant named Faizal. Thus, the accused has committed the above offences. 4. Heard; Sri.Unni.K.K., the learned counsel ## B.A.No.1505 of 2024 -:3:- appearing for the petitioner and Smt. Neema. T.V., the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. By no stretch of imagination can Section 326 be incorporated since the injured had not suffered any serious injuries. The Investigating Officer has deliberately incorporated Section 326 to deny bail to the petitioner. In fact, the petitioner was attacked by the injured, and he suffered injuries, as evidenced by Annexure A2 wound certificate. Pursuant to that, Annexure A3 FIR was registered at the instance of the petitioner. All the above circumstances would show the petitioner’s innocence in the above incident. In any given case, the petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the ## B.A.No.1505 of 2024 ## -:4:- application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner inflicted injuries on three of the injured. She made available the Accident Register-Cum-Wound Certificate of three injured named Ashik, Nabeel P.S, and Faizal, dated 08.02.2024, issued by the Payyannur Co-operative Hospital Society Ltd. She drew the attention of this Court to the wound certificate of the injured, named Faizal, who had suffered a fracture of the maxilla of both nasal bones. She submitted that the petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper the full and proper investigation. Hence, the application may be dismissed. ## 7. In **Siddharam Satlingappa Mhetre v. State** **of Maharashtra** [(2011) 1 SCC 694] the Hon’ble -:5:- ## B.A.No.1505 of 2024 ## 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 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; ## B.A.No.1505 of 2024 ## -:6:- (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 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. ## B.A.No.1505 of 2024 -:7:- 8. 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. 9. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submission made across the Bar, and especially after going through the Accident Register-Cum-Wound certificate of three injured and taking note of the fact that one of the injured had suffered a serious fracture and on comprehending the seriousness, gravity, and B.A.No.1505 of 2024 -:8:- nature of the accusations levelled against the petitioner, that the petitioners’ custodial interrogation is necessary and recovery is to be effected, I am convinced that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/13.03.24 B.A.No.1505 of 2024 ## -:9:- ## **`APPENDIX OF BAIL APPL. 1505/2024`** ``` PETITIONER ANNEXURES ANNEXURE A1TRUE COPY OF THE FIR IN CRIME NO. 112/2024 OF CHERUPUZHA POLICE STATION ANNEXURE A2TRUE COPY OF THE WOUND CERTIFICATE DATED 13.2.2024 ISSUED BY MEDICAL SUPERINTENDENTOFPAYYANNURCO- OPERATIVE HOSPITAL ANNEXURE A3TRUE COPY OF THE FIR ALONG WITH FIS IN CRIME NO. 120/2024 OF CHERUPUZHA POLICE STATION ```