MOHAMMED FAZEL, MOHAMMED YOUNUS, MOHAMMAD FAHAD, MUHAMMED ALI HAJI v. STATE OF KERALA

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 22[ND] DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 1930 OF 2024 ``` ``` CRIME NO.129/2024 OF Melattur Police Station, Malappuram ``` ## `PETITIONER/S:` - `1 MOHAMMED FAZEL, AGED 35 YEARS S/O MUHAMMED ALI HAJI, KALATHIL HOUSE, CHOLAKKULAM, MELATTUR, MALAPPURAM DISTRICT, PIN - 679326` - `2 MOHAMMED YOUNUS, AGED 42 YEARS S/O MUHAMMED ALI HAJI KALATHIL HOUSE, CHOLAKKULAM, MELATTUR, MALAPPURAM DISTRICT, PIN - 679326` - `3 MOHAMMAD FAHAD, AGED 20 YEARS S/O MUHAMMED ALI HAJI KALATHIL HOUSE, CHOLAKKULAM, MELATTUR, MALAPPURAM DISTRICT, PIN - 679326` - `4 MUHAMMED ALI HAJI, AGED 69 YEARS` - `S/O MUHAMMED @ BAPPU HAJI KALATHIL HOUSE,` - `CHOLAKKULAM, MELATTUR, MALAPPURAM DISTRICT, PIN - 679326` ``` BY ADVS. C.S.MANU DILU JOSEPH C.A.ANUPAMAN T.B.SIVAPRASAD C.Y.VIJAY KUMAR MANJU E.R. ANANDHU SATHEESH ALINT JOSEPH PAUL JOSE AJAY K. JACOB DAINY DAVIS GANESAN M. ``` ## `RESPONDENT/S:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` B.A No.1930/2024 ## **-: 2 :-** ## `OTHER PRESENT:` ``` PP SMT SHYNIMOL V O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No.1930/2024 ## **-: 3 :-** ## **C.S.DIAS,J.** = = = = = = = = = = = = = = = = = = = = ## **B.A No.1930 of 2024** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of March, 2024 ## **ORDER** 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 to 4 in Crime No.129/2024 of the Melattur Police Station, Malappuram, registered against them for allegedly committing the offences punishable under Sections 341, 323 and 324 of the Indian Penal Code [‘IPC’ in short]. Subsequently, Section 326 of the IPC was incorporated. 3. The essence of the prosecution case is that: on 03.02.2024, at around 17.15 hrs, the accused in furtherance of their common intention and out of the B.A No.1930/2024 ## **-: 4 :-** previous enmity towards the defacto complainant, wrongfully restrained him and the accused 1 and 2 assaulted the defacto complainant and caused grievous injuries to him. The accused 3 and 4 facilitated the accused 1 and 2 to cause the injuries. Thus, the accused have committed the above offences. 4. Heard Sri.C.S.Manu, the learned counsel appearing for the petitioners and Smt. Shynimol V.O., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They were falsely implicated in the crime. Section 326 IPC has been deliberately incorporated subsequently, for the purpose of denying bail to the petitioners. A reading of Annexure-A1 FIR and the wound certificate would B.A No.1930/2024 **-: 5 :-** substantiate that the defacto complainant has not suffered any grievous injuries. In any given case, petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that, there are specific overt acts alleged against accused 1 and 2 who inflicted grievous injuries on the defacto complainant with a cutting plier and a helmet. She made available the discharge summary of the injured to demonstrate that he had suffered a displaced nasal bone fracture, which was managed conservatively. She submitted that, the is to be and the custodial recovery effected interrogation of accused 1 and 2 is necessary for the proper investigation of the crime. If accused 1 and 2 are granted an order of pre-arrest bail, it would B.A No.1930/2024 **-: 6 :-** sabotage the investigation. Hence, their pre-arrest application may be dismissed. Nonetheless, she conceded to the fact that, there is no specific overt act alleged against the accused 3 and 4 in order to attract the offence under section 326 IPC. 7. The crux of the prosecution allegation is that, the accused, in furtherance of their common intention and out of the previous animosity with the defacto complainant, had wrongly restrained the injured and the accused 1 and 2 had assaulted him with a cutting plier and a helmet, and he suffered a nasal bone fracture. The said allegation prima facie stands corroborated with the discharge summary issued by the Moulana Hospital, Perinthalmanna dated 06.02.2024. On an analysis of the materials placed on record, the involvement of accused 1 and 2 seems to be probable. However, prima facie, there is no material to show that the accused 3 and 4 to B.A No.1930/2024 **-: 7 :-** have committed the offence punishable under Section 326 IPC. 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 B.A No.1930/2024 ## **-: 8 :-** 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. 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 B.A No.1930/2024 **-: 9 :-** 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. 10. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially after comprehending the nature, gravity, and seriousness of the accusations leveled against the accused 1 and 2, and after perusing the discharge summary issued by the Moulana Hospital in respect of the injured and taking into account the fact that the custodial interrogation of the accused 1 and 2 is necessary and recovery is to be ## B.A No.1930/2024 ## **-: 10 :-** effected, I hold that the accused 1 and 2 are not entitled to an order of pre-arrest bail. Nonetheless, considering the fact that, there is no specific overt act alleged against the accused 3 and 4 with respect to commission of offence under Section 326 IPC, I am convinced that, they are entitled to an order of prearrest bail. In the result, **I)** The application of the accused 1 and 2 is dismissed. Nonetheless, I direct that, if the accused 1 and 2 surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if accused 1 and 2 moves an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If accused 1 and 2 do not ## B.A No.1930/2024 ## **-: 11 :-** surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest accused 1 and 2 as if no order has been passed in this case. **II)** The application of 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 one week from today. ii) In the event of arrest of the 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.1,00,000/- (Rupees One Lakh only) each with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; iv) The accused 3 and 4 shall co-operate with the investigation and make themselves available for B.A No.1930/2024 ## **-: 12 :-** interrogation and for the purpose of investigation as and when the Investigating Officer directs; v). The accused 3 and 4 shall not intimidate witnesses or interfere with the investigation in any manner; vi). The accused 3 and 4 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 accused 3 and 4 even while the accused 3 and 4 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].** (x) Needless to say, any observations made in this order is only for the purpose of deciding the B.A No.1930/2024 ## **-: 13 :-** application and the same shall not be construed as an expression on the merits of the case to be decided by the Courts. Sd/- **C.S.DIAS, JUDGE** Sbna/