Muhammed Adhil @ Adhil and Syed Ali A v. State of Kerala and The Station House Officer, Poonthura Police Station

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 24[TH] DAY OF MAY 2024 / 3RD JYAISHTA, 1946 BAIL APPL.NO.3209 OF 2024 CRIME NO.356/2024 OF Poonthura Police Station, ``` # **`Thiruvananthapuram`** ## **`--------------`** ## **`PETITIONERS :-`** ``` 1MUHAMMED ADHIL @ ADHIL, AGED 20 YEARS S/O.MAHIN KANNU, TC 48/1251, KIZHAKE ALUKADU, MOONNATTUMUKKU, POONTHURA.P.O. THIRUVANANTHAPURAM, PIN - 695 026 2SYED ALI.A, AGED 20 YEARS S/O.SHAKKEELA, TC.NO.46/291, PUTHUVALPUTHENVEEDU, PARUTHYKUZHI, POONTHURA.P.O. THIRUVANANTHAPURAM, PIN - 695 026 BY ADV RASHEED C.NOORANAD ``` ## **`RESPONDENTS :-`** |**`1`**|**`STATE OF KERALA,`**| |---|---| ||**`REPRESENTED BY PUBLIC PROSECUTOR,`**| ||**`HIGH COURT OF KERALA, PIN - 682 031`**| |**`2`**|**`THE STATION HOUSE OFFICER,`**| ||**`POONTHURA POLICE STATION,`**| ||**`THIRUVANANTHAPURAM DISTRICT, PIN - 695 026`**| ||**`SRI.C.S.HRITHWIK, SR.PP`**| ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.3209 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 24th day of May, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 _,_ for an order of pre-arrest bail. 2. The petitioners are the accused 3 and 4 in Crime No.356/2024 of the Poonthura Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324 and 307 r/w Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that; on 08.04.2024, at around 16.40 hours, the accused, in furtherance of their common intention and out of the previous animosity towards the de facto complainant, chased the de facto complainant on a scooter and when they reached a place near SKT Hospital, the 3[rd] accused attacked the de facto complainant with a knife and inflicted serious injuries on him. Likewise, the 4[th] accused ``` BAIL APPL.NO.3209 OF 2024 ``` ``` -: 3 :- ``` also stabbed the de facto complainant on his left muscle portion and caused injuries to him. Thus, the accused have committed the above offences. 4. Heard; Sri.Rasheed C. Nooranad, the learned counsel for the petitioners and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of Annexure I FIR would substantiate that the petitioners have not committed the non-bailable offence under Section 307 of the Indian Penal Code. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that there are incriminating materials to establish the petitioners' involvement in the crime. A reading of Annexure I FIR reveals that there are ``` BAIL APPL.NO.3209 OF 2024 ``` ``` -: 4 :- ``` specific overt acts alleged against the petitioners for having caused grievour injuries to the de facto complainant. The petitioners' custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. 7. On an evaluation of Annexure I FIR, it can be seen that there are specific overt acts alleged against the petitioner for having inflicted grievous injuries on the de defacto complainant. However, that is a matter of investigation and to be decided at the time of trial. 8. Recently, 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 ``` BAIL APPL.NO.3209 OF 2024 ``` ``` -: 5 :- ``` 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 of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). ## xxx xxx 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 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 proper application of mind, to decide whether it is a fit case to grant an order of ``` BAIL APPL.NO.3209 OF 2024 ``` ``` -: 6 :- ``` 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 petitioners, that the petitioners' custodial interrogation is necessary and recovery is to be effected, I am convinced that the petitioners have not made out any exceptional ground 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. Nonetheless, I direct that, if the petitioners surrender 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 ``` BAIL APPL.NO.3209 OF 2024 ``` ``` -: 7 :- ``` surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, consider the bail application on its merits. 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** Jvt/24.5.2024 ``` BAIL APPL.NO.3209 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL. 3209/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure 1TRUE COPY OF THE FIR. NO.356/2024 OF POONTHURA POLICE STATION, THIRUVNANANTHAPURAM DATED 08-04- 2024 ```