Muhammed Rahees K v State of Kerala and The Station House Officer, Perambra Police Station, Kozhikode

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 BAIL APPL. NO. 1006 OF 2024 ``` ``` CRIME NO.0861/2023 OF PERAMBRA POLICE STATION, KOZHIKODE ``` ``` PETITIONER: ``` ``` MUHAMMED RAHEES K AGED 22 YEARS S/O ABDU RAZAK K, R/O KADANNALIL, PULLAVOOR, NIT CAMPUS P.O., KOZHIKODE, PIN – 673601 BY ADVS.HARIKRISHNAN M.S. SHAKTHI PRAKASH ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2THE STATION HOUSE OFFICER PERAMBRA POLICE STATION, KOZHIKODE, PIN – 673525 ``` ## `OTHER PRESENT:` ``` PP SMT SHYNI V O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1006/2024 -:2:- Dated this the 16[th] day of February,2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail. 2. The petitioner is the second accused in Crime No.861/2023 of Perambra Police Station, Kozhikode, registered against the accused (eight in number), for allegedly committing the offences punishable under Sections 342, 363, 120B, 364A, 365, 368, 506 & 323 of the Indian Penal Code, 1860. 3. The crux of the prosecution case is that: on 12.10.2023, at around 10.15 p.m., while the de-facto complainant was near his house, the accused Nos.1 to 3 abducted the cousin of the de-facto complainant, namely Yusuf, and demanded a ransom of Rs.12,00,000/-. The accused by keeping the abductee in confinement, made the relative sign an affidavit and B.A.No.1006/2024 -:3:- also made the older brother of Yusuf, namely Basheer, to pay 3000 dinars from Bahrain to one Sahal and, thereafter, they left the abductee. Thus, the accused have committed the above offences. 4. Heard; Sri `.` Harikrishnan M.S., the learned counsel appearing for the petitioner and Smt. Shyni V.O., the learned Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. The present crime has been registered as an afterthought of the earlier crime in Crime No.28/2024, wherein this Court granted the accused an order of pre-arrest bail as per Annexure-2 order. Subsequently, in order to take vengeance, the present crime has been registered. The petitioner has no criminal antecedents. The B.A.No.1006/2024 -:4:- custodial interrogation of the petitioner is not necessary and no recovery is to be effected. The petitioner is willing to co-operate with the Investigating Officer and abide by any stringent condition that may be imposed by this Court. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She contended that the petitioner has committed grave offence by abducting a person and demanding for a ransom. It is only after certain documents were signed, that the abductee was released. The petitioner is an accused in another case. The custodial interrogation of the petitioner is and the is to be effected. necessary recovery Annexure-2 order passed by this Court has no bearing on the facts and circumstances of the present case. The application is meritless and is only to be dismissed. B.A.No.1006/2024 -:5:- 7. The prosecution allegation is that, the accused in furtherance of their common intention had abducted one Yusuf and demanded his relatives to give them a ransom of Rs.12,00,000/-. Subsequently, they made the relatives signed some documents and pay 3,000 dinars to one Sahal in Bahrain. 8. Going by the prosecution allegation, the allegations levelled against the petitioner is serious and grave in nature. 9. 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 B.A.No.1006/2024 -:6:- 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; (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 B.A.No.1006/2024 -:7:- 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. ## 10. In **Jai Prakash Singh v. State of Bihar** **and Anr.** [(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 B.A.No.1006/2024 -:8:- 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. 11. On an anxious consideration to the facts, the materials placed on record, the rival submission made across the Bar, and on prima-facie comprehending the nature, gravity, and seriousness of the offence alleged against the petitioner, that the investigation in the case is only at its nascent stage, that the custodial interrogation of the petitioner is necessary and the recovery is to be effected, I am of the definite view that the petitioner has not made out any exceptional circumstances entitling him to invoke the extra-ordinary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that the is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. B.A.No.1006/2024 -:9:- 12. 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/- ## **C.S.DIAS,JUDGE** DST/15.02.24 //True copy// P.A. To Judge