Muhammed Akbar Sha F. v. State of Kerala

1 Bail Application No.336 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 BAIL APPL. NO. 336 OF 2024 ``` ``` CRIME NO.756/2023 OF Medical College Police Station, ``` ``` Thiruvananthapuram ``` ## **`PETITIONER/S:`** ``` MUHAMMED AKBAR SHA F. AGED 20 YEARS S/O. FAIJI B., KALLUVILA VEEDU, KATTUPUTHUSSERY, PALLIKKAL P.O., THIRUVANANTHAPURAM, PIN - 695604 BY ADVS. R.N.SANDEEP B.MUHAMMED SHAHEEL KEERTHI VIJAYAN ATHIRA UTHAMAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.NEEMA.T.V, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.336 of 2024 ## **C.S.DIAS,J** ## **======================** **Bail Application No.336 of 2024** **----------------------------------Dated this the 31st day of January, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the third accused in Crime No.756/2023 of the Medical College Police Station, Thiruvananthapuram, registered against the accused (three in number), for allegedly committing the offence punishable under Sec.379 of the Indian Penal Code, 1860, _(‘IPC’, for short)._ 3 Bail Application No.336 of 2024 3. The essence of the prosecution case is that: around 11.30 p.m on 24.5.2023, the accused had stolen a motor cycle bearing registration No.KL 22/L 3854 belonging to the defacto complainant. Thus, the accused have committed the above offence. 4. Heard; Sri. Sandeep R.N, the learned counsel appearing for the petitioner, and Smt.Neema T.V, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner is unaware of the reason why he has been implicated in the crime. The petitioner is a law abiding citizen and he has no criminal antecedents. The petitioner’s custodial interrogation is not necessary. Hence, the petitioner may be released on bail. 4 Bail Application No.336 of 2024 6. The learned Public Prosecutor vehemently opposed the application. She submitted that the first accused was apprehended by the Police, who was found in possession of the stolen motor cycle. The first accused confessed that he along with the petitioner and second accused had committed the above offence. It is in the above circumstances that the petitioner has been implicated as an accused in the crime. The petitioner’s custodial interrogation is necessary and the investigation is in progress. If the petitioner is let off on bail, it would hamper with the investigation of the case. 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 5 Bail Application No.336 of 2024 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. **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; 6 Bail Application No.336 of 2024 (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 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 pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts 7 Bail Application No.336 of 2024 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. 9. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the nature, gravity, and seriousness of the offence alleged against the petitioner, that the custodial interrogation of the petitioner is necessary and recovery is to be effected, I am of the definite view that the petitioner has not made out any exceptional ground to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 8 Bail Application No.336 of 2024 10. 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 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/31.1.2024 **C.S.DIAS, JUDGE**