Mujeeb Rahman; Abboobacker Kunookkara; Nazar M. v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 1128 OF 2024 ``` ``` CRIME NO.1399/2023 OF KONDOTTY POLICE STATION, MALAPPURAM AGAINST THE ORDER/JUDGMENT CRMC 1595/2023 OF DISTRICT COURT& ``` ``` SESSIONS COURT,MANJERI ``` ## _`PETITIONER(S)/ACCUSED NOS.1 TO 3:`_ ``` 1MUJEEB RAHMAN AGED 42 YEARS S/O. MOHAMMED, MANGAT HOUSE, NEDIYIRUPPU POST, KONDOTTY, MALAPPURAM DISTRICT DISTRICT, PIN – 673638 2ABOOBACKER KUNOOKKARA AGED 60 YEARS S/O. PATHUMMA KUNOOKKARA, KUNOOKKARA HOUSE, MUSLIYARANGADI, NEDIYIRUPPU POST, MALAPPPURAM DISTRICT, PIN – 673638 3NAZAR M AGED 39 YEARS C/O. MUHAMMED, MANJAPULATH HOUSE, MUSLIYARANGADI, NEDIYIRUPPU POST, MALAPPPURAM DISTRICT, PIN – 673638 BY ADV K.RAKESH ``` ## _`RESPONDENT(S)/STATE & COMPLAINANT:`_ ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN – 682031 2THE STATION HOUSE OFFICER KONDOTTY POLICE STATION, MALAPPURAM DISTRICT, PIN - 673638 BY ADV SRI C S HRITHWIK, SR PP ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 1128 OF 2024 -2- ``` ## _`ORDER`_ 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 petitioners are the accused 1 to 3 in Crime No.1399/2023 of the Kondotty Police Station, Malappuram, registered against them for allegedly committing the offences punishable under Sections 143, 147, 353 read with Section 149 of the Indian Penal Code and Section 3(1) of Prevention of Damage to Public Property Act, 1984. 3. The gist of the prosecution case is that: on 04.11.2023 at about 2 p.m., the accused, in prosecution of their common intention formed themselves into an unlawful assembly and trespassed into the hall of the Kondotty Municipality and destroyed the cordless mike, the curtains, the tower bolt of the door and caused a loss of Rs.15,000/- to the Municipality. They also assaulted ``` BAIL APPL. NO. 1128 OF 2024 ``` **==> picture [23 x 9] intentionally omitted <==** the de facto complainant and obstructed him from discharging his official duties as the Municipal Secretary. Thus, the accused have committed the above offences. 4. Heard; Sri. K.Rakesh, the learned counsel appearing for the petitioners and Sri. C.S.Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 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 the FIR would substantiate that the offence under Section 353 would not be attracted and the said offence has been deliberately incorporated to deny bail to the petitioners. At any rate, 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 ``` BAIL APPL. NO. 1128 OF 2024 ``` **==> picture [23 x 8] intentionally omitted <==** the application. He contended that, the petitioners caused ruckus in the Municipality and destroyed the public property. They assaulted the defacto complainant and prevented him from discharging his official duties. The petitioners' custodial interrogation is necessary, and recovery is to be effected. If the petitioners’ are granted an order of pre-arrest bail, it will hamper the investigation. Hence, the application may be dismissed. 7. The crux of the prosecution case is that, the accused in prosecution of their common intention had destroyed public property and also prevented the Municipal Secretary from discharging his official duties. They also caused a loss of Rs.15,000/- to the Municipality. 8. The petitioners had moved an application for pre-arrest bail before the Court of Session, Manjeri by filing Criminal M.C.No.1595/2023. By Annexure D order, the learned Sessions Judge dismissed the application on ``` BAIL APPL. NO. 1128 OF 2024 ``` **==> picture [23 x 8] intentionally omitted <==** finding that the petitioners’ custodial interrogation is necessary and recovery is to be effected. Nonetheless, the learned Sessions Judge permitted the petitioners to surrender before the Investigating Officer on or before 20.01.2024. 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 Session has to exercise their jurisdiction under Section 438 CrPC by a wise ``` BAIL APPL. NO. 1128 OF 2024 ``` ``` -6- ``` 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 ``` BAIL APPL. NO. 1128 OF 2024 ``` ``` -7- ``` ## 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 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, ``` BAIL APPL. NO. 1128 OF 2024 ``` ``` -8- ``` 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 Cr PC 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 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 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 ``` BAIL APPL. NO. 1128 OF 2024 ``` ``` -9- ``` misuse his liberty. 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record and particularly on comprehending the nature, seriousness and gravity of the accusation levelled against the petitioners that the learned Sessions Judge had granted the petitioners the right to surrender before the Investigating Officer, which they have not availed, I am of the definite view that the petitioners have not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Resultantly, I dismiss the bail application. ``` Sd/- ``` ``` C.S.DIAS JUDGE ``` ``` vv ``` ``` BAIL APPL. NO. 1128 OF 2024 ``` ``` -10- ``` ## _`APPENDIX OF BAIL APPL. 1128/2024`_ ``` PETITIONER ANNEXURES ``` ``` ANNEXURE ATRUE COPY OF THE NOTICE ISSUED BY THE SECRETARY OF KONDOTTY MUNICIPALITY DATED 13-11-2023 ANNEXURE BA TRUE COPY OF THE LAWYER NOTICE ISSUED BY ONE OF THE RESIDENT OF WARD NO.19 THROUGH HIS LAWYER DATED 29-11- 2023 ``` ``` ANNEXURE CTRUE COPY OF THE COMPLAINT FILED BY ONE RAJEEV BEFORE THE STATION HOUSE OFFICER, KONDOTTY POLICE STATION DATED 4-12-2023 ``` ``` ANNEXURE DA TRUE COPY OF THE ORDER IN CRL.M.C.NO.1595/2023 FILED BEFORE THE COURT OF SESSION, MANJERI DIVISION DATED 15-01-2024 ```