Moideen Musthak & Muhammed Bilal v. State of Kerala and Station House Officer, Kumbala Police Station

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 840 OF 2024 ``` ``` CRIME NO.1052/2023 OF Kumbla Police Station, Kasargod ``` ## **`PETITIONER/ACCUSED NO. 3 AND 2:`** ``` 1 MOIDEEN MUSTHAK, AGED 18 YEARS S/O ABDULLA, KALEEL HOUSE BATHERY, SHIRIYA P O, SHIRIYA, KUMBALA, KASARAGOD-, PIN - 671321 2 MUHAMMED BILAL AGED 20 YEARS S/O NAZIR KADAPURAM HOUSE SHIRIYA P O, SHIRIYA, KUMBALA, KASARAGOD-, PIN - 671321 BY ADVS. P.E.SAJAL AJAS K.S. ``` ## **`RESPONDENTS/STATE AND DEFACTO COMPLAINANT:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER KUMBALA POLICE STATION, KUMBALA, KASARAGOD, PIN - 671321 ``` ``` BY SR PP SRI C.S. HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.840 of 2024 2 ## **O R D E R** Dated this the 9[th] day of February, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused 3 and 2 in Crime No.1052/2023 of the Kumbala Police Station, Kasaragod registered against the accused (three in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 324, 294(b) and 149 of the Indian Penal Code, 1860. The learned Public Prosecutor submits that subsequently, Section 326 has been incorporated. 3. The gist of the prosecution case is that: on 05.12.2023 at about 4.45 p.m, the accused attacked the defacto complainant, who sustained a nasal bone fracture. Thus, the accused have committed the above B.A.No.840 of 2024 3 offences. 4. Heard; Sri. P.E. Sajal, the learned counsel appearing for the petitioners and Sri. C.S, Hrithwik., the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. There is a case and counter case registered against the petitioners as well as against the defacto complainant. Both parties have sustained injuries. The petitioners are students. The petitioners are willing to cooperate with the Investigating Officer and also abide by any condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that the petitioners, in prosecution of their common intention, assaulted the defacto complainant, and he suffered a B.A.No.840 of 2024 4 nasal bone fracture. He made available the Accident Register-Cum-Wound of the defacto complainant issued by the Medical Officer, Kumbala, dated 12.12.2023, to substantiate the injuries sustained by the defacto complainant. He submitted that the petitioners’ custodial interrogation is absolutely necessary, and recovery is to be effected. If the petitioners are let off on bail, it would hamper with 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 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 B.A.No.840 of 2024 5 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; (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 B.A.No.840 of 2024 6 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. ## 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 a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper B.A.No.840 of 2024 7 application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 9. On an anxious consideration of the facts, the materials placed on record, and the rival submissions made across the bar, especially after going through the Accident Register -Cum- Wound of the injured and comprehending the nature, gravity, and seriousness of the offences alleged against the petitioners, that the petitioners’ custodial interrogation is necessary, and that the recovery is to be effected, I am of the definite view that the petitioners are 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. Consequently, the bail application is dismissed. B.A.No.840 of 2024 8 10. Nonetheless, I direct that, if the petitioners surrenders 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 the petitioners move applications 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 petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. Sd/- **C.S.DIAS,JUDGE** mtk/09.02.2024 B.A.No.840 of 2024 9 ## **`APPENDIX OF BAIL APPL. 840/2024`** ``` PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE FIR IN CRIME NO. 1052/2023 OF KUMBLA POLICE STATION KASARGOD DISTRICT Annexure A2TRUE COPY OF THE MEDICAL REPORTS AND XRAYS Annexure A3TRUE COPY OF THE INTIMATION REPORT OF THE HOSPITAL WHERE THE PETITIONER WAS ADMITTED Annexure A4TRUE COPY OF THE COUNTER CASE FIR IN CRIME NUMBER 55/2024 DATED 19.01.2024 ```