Mohammed Moideen Kurikkal MP v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 25[TH] DAY OF JANUARY 2023 / 5TH MAGHA, 1944 ``` ``` BAIL APPL. NO. 266 OF 2023 ``` ## **`CRIME NO.18/2023 OF MEDICAL COLLEGE POLICE STATION, KOZHIKODE PETITIONER/ACCUSED:`** ``` MOHAMMD MOIDEEN KURIKKAL M P AGED 46 YEARS S/O ISHAQ KURIKKAL MP, PETTAYIL HOUSE, NEAR MANJERU MUNICIPAL OFFICE, MANJERI P O, MALAPPURAM PIN - 676121 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER MEDICAL COLLEGE POLICE STATION, KOZHIKODE CITY (CRIME NO. 18/2023 OF MEDICAL COLLEGE POLICE STATION, KOZHIKODE CITY), PIN - 673008 ADDL R3VINISH MOOSA S/O MOHAMMAD BASHEER K.P., HILL VIEW, ANAKKAYAM P.O., MALAPPURAM IS IMPLEADED AS ADDL R3 AS PER ORDER DATED 19/1/2023 IN CRL MA 1/2023 BY ADVS. PUBLIC PROSECUTOR K.M.SATHYANATHA MENON DIRECTOR GENERAL OF PROSECUTION(AG-10) P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR PP-SMT.SHEEBA THOMAS ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 266 OF 2023 ``` ``` 2 ``` ## **O R D E R** Dated this the 25[th] day of January, 2023 This is an application for anticipatory bail filed by the sole accused in crime No.18/2023 of Medical College Police Station, Kozhikode, where the accused alleged to have committed offence punishable under Sections 341, 326 and 308 of IPC. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. I have gone through the case diary materials produced by the learned Public Prosecutor. 4. The learned counsel for the petitioner, while pressing for grant of anticipatory bail, read out the sequence of events in parity with statement in the First Information Statement to contend that the accused as well as the defacto complainant jointly consumed liquor and thereafter, when the defacto complainant shown hastiness to leave the place ``` BAIL APPL. NO. 266 OF 2023 ``` ``` 3 ``` behind AMPM Supermarket, on a sudden provocation, the petitioner made stab injury to the defacto complainant and therefore, the offences alleged by the prosecution would not attract. According to the learned counsel for the petitioner, if any offence would attract in the facts of the given case, the same is one under Section 335 of IPC, where it has been provided that whoever causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to four years, or with fine which may extend to two thousand rupees, or with both. The said offence is bailable. 5. He also submitted that in cases involving custodial interrogation for the purpose of recovery, then also the same is only ‘limited custody’ or ‘deemed custody’, as held by the Apex Court in the decision reported in **2020 (5) SCC (1) (Sushila Aggarwal & Others V. State (NCT of Delhi) and** ``` BAIL APPL. NO. 266 OF 2023 ``` ``` 4 ``` **Another).** Epitomizing the submission, the learned counsel for the petitioner pressed for grant of anticipatory bail with offer to co-operate with the investigation. 6. The learned Public Prosecutor zealously opposed grant of bail and submitted that even on a cursory reading of the Fist Information Statement the same would not depict that that the overt act at the instance of the petitioner is one, arose out of grave and sudden provocation. According to the learned Public Prosecutor, it is an intentional act with intention to do away the defacto complainant. He also submitted that very serious injury sustained due to the stab caused to the defacto complainant and in such a case, arrest, custodial interrogation and recovery of weapon alleged to be used for stabbing the defacto complainant are necessary to achieve meaningful investigation and successful prosecution. 7. The learned Public Prosecutor placed a latest decision of the Apex Court reported in **2020 SCC OnLine SC 1529** ( **Sumitha Pradeep v. Arun Kumar C.K. and Another** ), ``` BAIL APPL. NO. 266 OF 2023 ``` ``` 5 ``` ## wherein the Apex Court held as under: “ _In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail.”_ 8. The learned Public Prosecutor also placed another decision of the Apex Court reported in **2021 SCC OnLine SC** ``` 6 ``` ## **`BAIL APPL. NO. 266 OF 2023`** ## **1046 (Sadakat Kotwar and Another v. State of Jharkhand)** to contend even a single blow may, in some cases, entail conviction under Section 302 of IPC, and in some cases under Section 304 of IPC and in some matters cases under Section 326 of IPC. In fact, in the said decision, the Apex Court extracted observation in the decision reported in ( **2000) 1 SCC 319 (Mahesh Balmiki v. State of M.P.)** and the same is as under: _“9. ………… there is no principle that in all cases of a single blow Section 302 Penal Code, 1860 is not attracted. A single blow may, in some cases, entail conviction Under Section 302 Penal Code, 1860, in some cases Under Section 304 Penal Code, 1860 and in some other cases Under Section 326 Penal Code, 1860. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled_ ``` BAIL APPL. NO. 266 OF 2023 ``` ``` 7 ``` _from saving himself because he was held by the associates of the Appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the Appellant had the intention to kill the deceased. In any event, he can safely be attributed the knowledge that the knife-blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.”_ 9. In order to allay the rival contentions, I have perused the case diary. In the First Information Statement, there are averments to the effect that initially, the accused and the complainant jointly consumed alcohol from Kozhikode and then reached the house of Balanandhan and they had consumed alcohol at the house of the Balanandhan also. Thereafter, they reached on the rear side of the AMPM Supermarket. The further allegation is that when the defacto complainant showed hastiness to leave the place, the accused hit down the defacto complainant and caused stab injury on his stomach by using a knife kept in his pocket. On perusal of ``` BAIL APPL. NO. 266 OF 2023 ``` ``` 8 ``` the wound certificate as that of Vineesh Moosa, who is the defacto complainant, prepared at 11.35 PM at 05.01.2023 before the Baby Memorial Hospital Ltd. Kozhikode, the following injuries were noted. Incised wound 3.5 x 1 x 9 cm upper abdomen in the midline, oriental Transversely. No visceral injury noted peroperatively. On examination of abdomen of Vineesh Moosa, the following also noted. Haematoma anterior abdominal wall and intramuscular haematoma. Further he has been continuing inpatient treatment. 10. In ‘history and alleged cause of injury’ stated in column No.10 of the wound certificate is that stab with knife by patient’s friend at Kuthiravattom road, behind AMPM supermarket at 11.25 pm on 05.01.2023. In additional to that, the petitioner alleged to have stabbed the defacto complainant by using the knife taken from his pocket. A person, who does not has an intention to assault other man, normally shall not ``` BAIL APPL. NO. 266 OF 2023 ``` ``` 9 ``` keep a knife in his pocket. If so, if a person causes stab injury by taking a knife kept in his pocket, the same cannot be reckoned as an act arose out of grave and sudden provocation, that too at the initial stage of investigation. 11. On perusal of the case diary materials along with injuries caused, this Court cannot reach a conclusion at this premature stage of investigation that the overt act at the instance of the petitioner is one arose out of grave and sudden provocation to read this offence as one punishable under Section 335 of IPC. 12. In so far as the ‘limited custody’ dealt by the Apex Court in **Sushila Aggarwal** ( _Supra_ ) is concerned, the said ratio is specifically in relation to recovery under Section 27 of the Evidence Act and the same by itself is not a reason to grant anticipatory bail to persons alleged to have committed henous crimes after giving ‘limited custody’. Therefore, the ratio of the said decision also will not save the petitioner to get the discretionary relief of pre-arrest bail. ``` BAIL APPL. NO. 266 OF 2023 ``` ``` 10 ``` 13. Whereas the prosecution records would justify, _prima facie_ , the commission of the offences alleged by the prosecution, and in such a case arrest, custodial interrogation and recovery of weapon are an essential part of the investigation or else, the investigation would become redundant and the same is akin to acquittal of the accused before investigation. Therefore, I am not inclined to grant anticipatory bail to the petitioner. Accordingly, the bail application stands dismissed. **Sd/-** **A. BADHARUDEEN** **JUDGE** nkr ``` BAIL APPL. NO. 266 OF 2023 ``` ``` 11 ``` ## **`APPENDIX OF BAIL APPL. 266/2023`** ``` PETITIONER ANNEXURES Annexure-IA CITIZEN COPY OF THE FIR IN CRIME NO 18/2023 OF MEDIAL COLLEGE POLICE STATION, KOZHIKKODE ```