Moideenkutty v. Mahs​​oof Musthafa and State of Kerala (Crl.M.C. Nos. 1397 & 1398 of 2018)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939** **Crl.MC.No. 1397 of 2018** **-----------------------** **CRMP 427/2018 OF CHIEF JUDICIAL MAGISTRATE COURT,MANJERI CRIME NO. 16/2018 OF KARIPUR POLICE STATION , MALAPPURAM** **-------------** ## **PETITIONER/DEFACTO COMPLAINANT.** **------------------------------** **MOIDEENKUTTY, AGED 46, S/O MOHAMMED, KEEZHEDATH HOUSE, C.H ROAD, MUNNIYOOR, TIRURANGADI, MALAPPURAM DISTRICT.** **BY ADV.SRI.R.BINDU (SASTHAMANGALAM)** ## **RESPONDENT(S)/4TH ACCUSED & STATE:** **----------------------------------** **1. MAHSOOF MUSTHAFA, AGED 21, S/O MUSTHAFA, UNNIYALUNGAL HOUSE, BAPPUTTY HAJI NAGAR, KODINJI ROAD, CHEMMAD, MALAPPURAM DISTRICT. PIN.673002** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI. 682031.** **R1 BY ADVS.SRI K. RAMAKUMAR (SR) SRI.K.K.MOHAMED RAVUF R2 BY PUBLIC PROSECUTOR SRI ALEX M THOMBRA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-03-2018, ALONG WITH CRL.MC NO.1398/2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** **Crl.MC.No. 1397 of 2018 () --------------------------** ## **PETITIONER(S)' ANNEXURES -------------------------** **ANNEXURE 1 TRUE COPY OF THE DISCHARGE SUMMARY DATED 14.2.2018 ANNEXURE II TRUE COPY OF THE FIRST INFORMATION REPORT DATED 13.2.2018 ANNEXURE III CERTIFIED COPY OF THE ORDER PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI (I/C), DATED 16.2.2018 ANNEXURE IV CERTIFIED COPY OF THE ORDER PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI IN CRL.MP NO.427/2018 DATED 20.2.2018.** ## **RESPONDENTS ANNEXURES: NIL** **---------------------** **/TRUE COPY/** **K.V. P.S.TO JUDGE 6.03.2018** ## **[CR]** B. KEMAL PASHA, J. ----------------------------------------------Crl.M.C.Nos.1397 and 1398 of 2018 ----------------------------------------------Dated this the 5[th] day of March, 2018 ## O R D E R Petitioner in both these Crl.M.Cs is the defacto complainant in Crime No.16/2018 of the Karipur Police Station, registered for the offences punishable under Sections 143, 147, 148, 341, 323, 326, 506(ii) and 294(b) read with Section 149 IPC and Section 4 of the Kerala Prohibition of Ragging Act, 1998. These Crl.M.Cs are filed under Section 439(2) Cr.P.C. as well as Section 482 Cr.P.C. 2. The 1[st] respondent in Crl.M.C.No. 1398/2018 is the 2[nd] accused, and the 1[st] respondent in Crl.M.C.No.1397/2018 is the 4[th] accused in the crime. They were placed under arrest by the police on 15.02.2018. On the very next day, through Annexure-III order, they were granted interim bail by the learned Magistrate, who was in charge of the Chief Judicial Magistrate, Manjeri, even though, the same was 2 Crl.M.C.Nos.1397 and 1398 of 2018 opposed by the learned Assistant Public Prosecutor in charge of the case. Subsequently, on 20.02.2018, the learned Chief Judicial Magistrate, Manjeri granted regular bail to the petitioners, on the ground that as per order dated 16.02.2018 they were already on interim bail granted by his predecessor in charge. 3. It has been pointed out that this is a case in which the injured, who is the son of the defacto complainant, was brutally attacked by a group of senior students including the 1[st] respondent in both these Crl.M.C.s under the guise of ragging at the college, wherein they were studying. According to the learned counsel for the 1[st] respondent in Crl.M.C.No.1397/2018 and the learned Senior Counsel for the 1[st] respondent in Crl.M.C.No.1398/2018, the injured was admitted at the hospital as a person who sustained injuries in a RTA, and therefore, it is false to say that he was subjected to ragging at the college or he was beaten up by the accused in the crime. 4. The learned counsel for the petitioner invited the attention of this Court to Annexure-I discharge summary, which shows that initially the petitioner was admitted at the 3 Crl.M.C.Nos.1397 and 1398 of 2018 hospital with complaints of pain, swelling, and inability to open the mouth, following an alleged history of a RTA, referred from the Relief Hospital, Kondotty. It is true that at the Relief Hospital, Kondotty, he was brought by somebody who gave a version before the doctor that he sustained injuries in a RTA. The history noted by the doctor is not everything. The facts have been clearly explained by the defacto complainant, who is the father of the injured. Initially, the defacto complainant also thought that his son sustained injuries in a RTA, while he was using his motor bike. 5. According to the defacto complainant, he was informed over the phone by another student of the college that his son sustained injuries in a RTA. He went to the hospital and saw his son. His son could not communicate anything in that particular stage, especially when he could not open his mouth on account of very serious injuries sustained. The investigations by the doctor have shown that there was multifocal fracture involving body of mandible, displaced bone fragment in floor of mouth 1.5 x 0.6 cm, subluxation of right TMJ etc. Closed reduction and temporary immobilization by direct wiring was done under local anesthesia. Crl.M.C.Nos.1397 and 1398 of 2018 4 6. It is a fact that the injured could not open his mouth. It is a further fact that he was altogether in a shock and he could not convey to his father, as to what had actually happened. When he became relaxed after undergoing treatment, the boy could give in writing to his father as to what had happened. The boy stated that he was brutally attacked and he was beaten on his face with an iron rod by the accused, whereby he sustained very serious injuries on his face and other portions of the body. 7. It seems that the court below has considered the matter in a very casual manner. The learned Magistrate, who had originally granted interim bail, was of the view that the accused were of tender age. It is not at all a ground for granting bail, when a heinous offence has been committed by such persons. Those students were above the age of 22 years. It cannot be said that it was tender age. They were not juveniles in conflict with law; whereas, they are grave criminals had the acts alleged against them been done by them. It is a matter to be investigated into. 8. It has been pointed out before this Court that even the weapon could not be recovered with the aid of Section 5 Crl.M.C.Nos.1397 and 1398 of 2018 27 of the Indian Evidence Act, when those accused were already enlarged on bail. No ground has been stated by the learned Magistrate, who granted interim bail as to the grounds on which interim bail was granted. Above all, the regular Chief Judicial Magistrate has also taken the view that interim bail was granted, and therefore, he was bound to grant regular bail. 9. By invoking the power under Section 437(5) Cr.P.C., the regular Chief Judicial Magistrate ought to have ordered the re-arrest of the 1[st] respondent in both these cases, who were illegally enlarged on bail by a Magistrate without applying his mind. The investigation is now in a standstill, when these accused were enlarged on bail. It has been pointed out that the other accused have also approached the court for anticipatory bail based on the fact that two among the accused have already been enlarged on regular bail. 10. The orders passed by the then Magistrate who was in charge of the Chief Judicial Magistrate by way of interim bail and also the regular Chief Judicial Magistrate in granting bail are patently illegal, since it is in gross violation of the dictums laid out by the Apex Court in _**Neeru Yadav v. State**_ _**of U.P. and Another** [AIR 2015 SC 3703 = 2016 (15) SCC_ Crl.M.C.Nos.1397 and 1398 of 2018 6 _422]_ . In _**Neeru's case** (Supra)_ , the Apex Court has considered the decision in _**Ram Govind Upadhyay v. Sudarsan Singh** [2002 (3) SCC 598]_ wherein it was clearly laid down that the grant of bail though involves exercise of discretionary power of the court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. It was further held that the heinous nature of crimes warrants more caution as there is a grater chance of rejection bail though, however, dependent on the factual matrix of the matter. 11. In _**Ram Govind Upadhyay** (Supra), reference was made to the decision in_ _**Prahlad Singh Bhati v. NCT of**_ _**Delhi** [2001 (4) SCC 280] and it was further held_ as follows: “(a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if, the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a 7 Crl.M.C.Nos.1397 and 1398 of 2018 prima facie satisfaction of the Court in support of the charge. (d) 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.” 12. In paragraph 11 of _**Neeru's case** (Supra)_ , it was held that, “11. It is a well settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are, (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the Court in support of the charge. [See Chaman Lal v. State of U.P., 2004 KHC 1518 : (2004) 7 SCC 525 : AIR 2004 SC 4267 : 2004 SCC (Cri) 1974 : 2004 All LJ 3242 : 2004 CriLJ 4243].” The same were the views taken by the Apex Court in _**Chaman**_ _**Lal v. State of U.P.** [AIR 2004 SC 4267]_ . 13. In paragraph 5 of _**Neeru's case** (Supra)_ , it 8 Crl.M.C.Nos.1397 and 1398 of 2018 ## was held that, “5. At the outset we are obliged to clarify that it is not an appeal seeking cancellation of bail in the strictest sense. It actually calls in question the legal pregnability of the order passed by the High Court. The prayer for cancellation of bail is not sought on the foundation of any kind of supervening circumstances or breach of any condition imposed by the High Court. The basic assail is to the manner in which the High Court has exercised its jurisdiction under S.439 CrPC while admitting the accused to bail. To clarify, if it has failed to take into consideration the relevant material factors, it would make the order absolutely perverse and totally indefensible. That is why there is a difference between cancellation of an order of bail and legal sustainability of an order granting bail.” 14. The learned Senior Counsel for the 1[st] respondent in Crl.M.C.No.1398/2018 has argued that this Court cannot exercise the power under Section 439(2) Cr.P.C. or the one under Section 482 Cr.P.C., when the petitioner had not approached the court below under Section 437(5) Cr.P.C. As per Section 437(5) Cr.P.C., _“Any Court which has released a person on bail under sub-section (1), or sub-section (2), may, if it considers it necessary so to do, direct that such person be_ Crl.M.C.Nos.1397 and 1398 of 2018 9 _arrested and commit him to custody.”_ As per Section 439(2) Cr.P.C., “ _A High Court or Court of Session may direct that any person, who has been released on bail under this Chapter be arrested and commit him to custody.”_ When the identical power as the one contained under Section 437(5) Cr.P.C. also has been given to a High Court and a Court of Session under Section 439(2) Cr.P.C., it is idle to contend that this Court cannot exercise the power under Section 439(2) Cr.P.C. when the petitioner has not made recourse to the provisions under Section 437(5) Cr.P.C. 15. Regarding Section 482 Cr.P.C., it has to be noted that this Court can step in when there is failure of justice. It is not a case wherein the 1[st] respondent in both these cases have failed to comply with any of the conditions imposed on them by the court below, when bail was granted to them. At the same time, what has been contended is that the orders by which they were enlarged bail by the court below are perverse and are patently illegal. As pointed out above, the orders passed by the court below in both these cases are patently illegal and perverse. No matters were considered when they were enlarged on bail. Therefore, this is a case in which this Crl.M.C.Nos.1397 and 1398 of 2018 10 Court has to exercise its power under Section 482 Cr.P.C. to quash all the said impugned orders passed in both these matters by the court below, and also the power under Section 439(2) Cr.P.C., for the ends of justice. In the result, these Crl.M.Cs are allowed and the impugned orders passed by the court below in these matters are quashed. The 1[st] respondent in both these cases are ordered to be placed under arrest and to commit to custody. This order is without prejudice to the remedies available to the accused as per law. Sd/- B.KEMAL PASHA, JUDGE sd