Mohammed Shaheensha P.N. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 4874 OF 2024 ``` ``` CRIME NO.423/2024 OF WEST CIRCLE POLICE STATION, THRISSUR. ``` ## **`PETITIONER(S)/ ACCUSED NO.2:`** ``` MOHAMMED SHAHEENSHA P.N, AGED 26 YEARS S/O NOUSHAD P.K, PUZHANGARAILLATH HOUSE, THALAKKOTTUKARA P.O,ERANELLUR,THRISSUR, PIN – 680501 ``` ``` BY ADVS. NIFFIN P. KAREEM BRISONE T. MATHEW ``` ## **`RESPONDENT(S)/STATE OF KERALA:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER, THRISSUR WEST POLICE STATION,THRISSUR, PIN - 680003 ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.4874/2024 ``` ``` 2 ``` ## **O R D E R** Dated this the 26[th] day of July, 2024 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 second accused in Crime No.423/2024 of the Thrissur West Police Station, Thrissur, which is registered against the accused for allegedly committing the offences punishable under Sections 341, 324, 326 and 308 r/w Section 34 of the Indian Penal Code, 1860. 3. The essence of the prosecution case is that: on 19.04.2024, at around 5.30 hours, the accused and others, in furtherance of the common intention, hit the car against the motor cycle of the de facto complainant (injured) and he suffered grievous injuries. Thus, the accused have committed the above offences. ``` BAIL APPL.NO.4874/2024 ``` ``` 3 ``` 4. Heard; Sri.Niffin P. Kareem, the learned counsel appearing for the petitioner and Smt. Seetha S, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate that the petitioner has committed the offences under Sections 326 and 308 of the IPC, which are the non-bailable offences. A reading of the First Information Report would clearly reveal that 1[st] accused assaulted the de facto complainant and he suffered grievous injuries. The petitioner was only a passenger in the vehicle, which allegedly hit against the motor cycle of the injured. The petitioner is a law-abiding citizen without any criminal antecedents. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. ``` BAIL APPL.NO.4874/2024 ``` ``` 4 ``` 6. The learned Public Prosecutor seriously opposed the application. She submitted that at the initial stage of the investigation, the roles of each of the accused were not evidenced. However, as investigation has progressed, the CCTV footage undoubtedly establishes that it was the petitioner who drove the car and hit against the motor cycle of the injured. The injured suffered grievous injuries. It is only due to sheer providence that injured did not lose his life. She submitted that the petitioner's custodial interrogation is necessary and recovery is to be effected for a proper and full investigation. If the petitioner is granted an order of pre-arrest bail, it would sabotage the entire investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that, he drove the car and hit against the motor cycle of the injured, who fell down and suffered grievous injuries. Whether the petitioner drove the car ``` BAIL APPL.NO.4874/2024 ``` ``` 5 ``` in question or not is a matter that has to be investigated and finally decided at the time of trial. The petitioner had filed similar application before the Court of Session, Thrissur, which was dismissed by Annexure-A3 order with the specific finding that there are prima facie materials to substantiate the petitioner’s involvement in the crime. Therefore, the petitioner’s custodial interrogation is necessary. 8. 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 ``` BAIL APPL.NO.4874/2024 ``` ``` 6 ``` of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). 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. 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 ``` BAIL APPL.NO.4874/2024 ``` ``` 7 ``` 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 on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, the prima facie materials substantiate the petitioner’s involvement in the crime, that it was the petitioner who allegedly drove the vehicle and hit against the motor cycle of the injured, that the petitioner’s custodial interrogation is necessary, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. ``` BAIL APPL.NO.4874/2024 ``` ``` 8 ``` Consequently, the bail application is dismissed. Sd/- **C.S.DIAS, JUDGE.** JJ ## **`BAIL APPL.NO.4874/2024`** ``` 9 ``` ## **`APPENDIX OF BAIL APPL. 4874/2024`** ## **`PETITIONER’S ANNEXURES`** ``` Annexure A1TRUE COPY OF THE FIR NO.423/2024 OF THRISSUR WEST POLICE STATION DATED 28/04/2024 Annexure A2TRUE COPY OF THE F.I.R IN CRIME NO. 408/2024 OF THRISSUR WEST POLICE STATION DATED 21/04/2024 Annexure A3TRUE COPY OF THE ORDER IN CRL.MC NO.708/2024 OF HON'BLE SESSIONS COURT, THRISSUR DATED 29/05/2024 ``` ``` //TRUE COPY// ``` ``` PA TO JUDGE ```