Mohammed Shifin v. State of Kerala

1 BA No.937 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 BAIL APPL. NO. 937 OF 2024 ``` ``` CRIME NO.2868/2023 OF Palarivattom Police Station, Ernakulam PETITIONER/S: ``` ``` MOHAMMED SHIFIN AGED 34 YEARS S/O. MOHAMMED ASLAM, KIZHAKKETHAZHATH VEZHAPILLY HOUSE, MUNDAMPALAM, THRIKKAKARA P.O.,, PIN - 682021 BY ADVS. K.R.VINOD M.S.LETHA NABIL KHADER KELWIN SIMON DEVIKA S. MAZIN IBRAHIM ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.NIMA JACOB, PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.937 of 2024 ## **C.S.DIAS,J** ## **====================== BA No.937 of 2024** ## **----------------------------------Dated this the 15[th] day of February, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, for an order of pre-arrest bail. 2. The petitioner is the third accused in Crime No.2868/2023 of the Palarivattom Police Station, Ernakulam, registered against the accused, for allegedly committing the offences punishable under Sections 365, 395 and 397 of the Indian Penal Code. 3. The crux of the prosecution case is that: the first accused had collected Rs.18/- Lakh from seven persons offering admission to a nursing course. He had taken commission from the amounts collected and entrusted it to 3 BA No.937 of 2024 one Akhil, the friend of the defacto complainant. However, the first accused could not secure the admission. The said Akhil failed to return the amount back to the first accused. Then the first accused approached the defacto complainant to get information about Akhil, but he expressed his helplessness. Out of the said animosity, on 11.12.2023, the first accused asked the defacto complainant to go near Palarivattom overbridge with an intention to abduct the defacto complainant and commit robbery with the assistance of the accused 3 to 13. Accordingly, the first accused went with his wife to the place of occurrence. Then, the second accused reached the spot and sent the location through whatsapp to the third accused. Subsequently, all the accused with an intention to abduct the defacto complainant forcefully took him and reached the shop of the sixth accused. The accused 4,5 and 7 to 13 assaulted and attacked the defacto complainant with liquor bottles and sharp 4 BA No.937 of 2024 weapons. The defacto complainant sustained several injuries on his body. Thereafter, the accused robbed the defacto complainant’s five sovereigns of gold ornaments and Rs.30,000/-. The accused abandoned the defacto complainant and left the scene of occurrence. Thus, the accused have committed the above offences. 4. Heard Sri.K.R Vinod, the learned counsel appearing for the petitioner and Smt.Nima Jacob, the learned Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no specific overt act alleged against the petitioner. The petitioner’s custodial interrogation is not necessary and no recovery has to be effected. The petitioner is willing to abide by any stringent condition that 5 BA No.937 of 2024 may be imposed by this Court. Hence, the petitioner may be released on bail. 6. The learned Public Prosecutor seriously opposed the application. She contended that there is a specific overt act alleged against the petitioner i.e., he was the person who sent the location of the place of occurrence through whatsapp to the other accused. The petitioner’s custodial interrogation is necessary and recovery is to be effected. The petitioner’s application for bail was dismissed by Annexure A3 order by the Court of Session. Hence, the application may be dismissed. 7. The essence of the prosecution case is that the accused in furtherance of their common intention had abducted the defacto complainant, assaulted him and, thereafter, committed robbery. The specific overt act alleged against the petitioner is that he sent the location of the place of occurrence through whatsapp to the other accused to enable 6 BA No.937 of 2024 them to reach the spot where the defacto complainant was confined. It is an undisputed fact that, the petitioner had filed an application for bail before the Court of Session, Ernakulam, which was dismissed by Annexure A3 order on finding that the petitioner’s custodial interrogation is necessary, that recovery is to be effected and there is a specific overt act alleged against him. 8. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble 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. 7 BA No.937 of 2024 **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; (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 8 BA No.937 of 2024 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. ## 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 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. On a consideration of the facts, materials placed on record, the rival submissions made across the Bar, and especially taking into account the nature, seriousness and gravity of the accusations levelled against the petitioner, that 9 BA No.937 of 2024 prima facie the accusations made against the petitioner seem to be correct, that the investigation in the case is in progress, that the petitioner’s custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the petitioner has not made any exceptional ground to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that the bail application is meritless and is only to be dismissed. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. If the petitioner does not surrender 10 BA No.937 of 2024 before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. sd/- sks/15.2.2024 **C.S.DIAS, JUDGE**