Muneer S.N. v. State of Kerala; Ajay A S v. State of Kerala (Bail Applications Nos. 2268/2024 and 3704/2024)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946** **BAIL APPL. NO. 2268 OF 2024** **CRIME NO.217/2024 OF Kattakada Police Station, Thiruvananthapuram PETITIONER/S:** **MUNEER.S.N, AGED 26 YEARS S/O.SULAIMAN, CHEKKITTAVILAKATHU HOUSE, MARKET ROAD,KATTAKADA, THIRUVANANTHAPURAM, PIN - 695572** **BY ADVS. SUMAN CHAKRAVARTHY K.R.RIJA BREJITHA UNNIKRISHNAN SUDEESH K.E.** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **2 SULAIMAN A, S/O. ABDULKHADER, KAITHAKKONAM, MARKET ROAD, KATTAKKADA P.O., PERUKULAM VILLAGE, KATTAKKADA, THIRUVANANTHAPURAM ( SOUGHT TO BE IMPLEADED )** **BY ADV SALINI T.S.** ## **OTHER PRESENT:** ## **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.08.2024, ALONG WITH Bail Appl..3704/2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946** ## **BAIL APPL. NO. 3704 OF 2024** **CRIME NO.217/2024 OF Kattakada Police Station, Thiruvananthapuram PETITIONER/S:** **1 AJAY A S, AGED 26 YEARS S/O ANILKUMAR, A.S NIVAS KUNNIL THADATHARIKATHU, THOTTAMPARA, KATTAKKADA, THIRUVANANTHAPURAM, PIN - 695572 2 ANVEER @ INKRU, AGED 29 YEARS S/O MUHAMMED JAHANGEER, VARUVILAKATHU VEEDU,NEAR CSI CHURCH, KATTAKKADA,THIRUVANANTHAPURAM, PIN - 695572 3 AKSHAY A S, AGED 29 YEARS S/O ANILKUMAR, A.S NIVAS KUNNIL THADATHARIKATHU, THOTTAMPARA,KATTAKKADA, THIRUVANANTHAPURAM, PIN - 695572** **BY ADV RAJEESH V.R.** ## **RESPONDENT/S:** ## **STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.08.2024, ALONG WITH Bail Appl..2268/2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. Nos.2268 and 3704 of 2024 3 ## **C.S.DIAS,J** **---------------------------------------------------------Bail Application Nos.2268 & 3704 of 2024 ----------------------------------------------------------Dated this the 1[st] day of August, 2024** ## **COMMON ORDER** The applications are filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. B.A.No.2268 of 2024 is filed by the 1[st] accused and B.A.No.3704 of 2024 is filed by the accused Nos.2 to 4 in Crime No.217 of 2024 of the Kattakada Police Station, Thiruvananthapuram, which is registered against the accused, for allegedly committing the offences punishable under Sections 341, 323, 324, 308, 326 and 427 read with Section 34 of the Indian Penal Code (in short, 'IPC'). 3. The concise case of the prosecution is that: on 19.02.2024, at around 22.30 hours, the accused, in furtherance of their common intention, while the defacto complainant was seated in his car and talking to a person, the 4[th] accused wrongfully restrained the defacto B.A. Nos.2268 and 3704 of 2024 4 complainant and the accused 1 to 3 attacked him with iron rods. The 2[nd] accused hit the defacto complainant on the rear side of his head, the 1[st] accused caught hold of his fingers and twisted it and the 3[rd] accused hit him on his back. The defacto complainant suffered grievous injuries. Thus, the accused have committed the above offences. 4. Heard; Sri. Suman Chakravarthy and Sri.Rajesh.V.R, the learned counsel appearing for the petitioners, Sri.C.S.Hrithwik and Smt.Seetha S., the learned Public Prosecutors and Smt.Salini S., the learned counsel appearing for the defacto complainant/ 3[rd] respondent. 5. The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations levelled against them. They have been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Sections 308 and 326 of the IPC to deny bail to the petitioners. The defacto complainant has not suffered any injury so as to attract the offence under Section 326 of IPC. In fact, the defacto complainant is a person with criminal antecedents and he was the one who caused the B.A. Nos.2268 and 3704 of 2024 5 fight between the parties. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the applications may be allowed. 6. The learned Public Prosecutors seriously opposed the applications. They submitted that there are specific overt acts alleged against the accused 1 to 3, who had all used iron rods and hit the defacto complainant on the different parts of the body. They have made available the discharge summary of the defacto complainant issued by the Neyyar Medicity Hospital dated 20.02.2024, to substantiate the fact that the defacto complainant had suffered a fracture of the left zygomatic arch, mild subgaleal hematoma over right frontal convexit extended to the right periorbital and a fracture of his finger. They submitted that the custodial interrogation of the accused 1 to 3 is necessary for the proper and full investigation of the trial. However, they did not dispute the fact that the only allegation made against the 4[th] accused is that he wrongfully restrained the defacto complainant and facilitated the accused 1 to 3 to commit the above assault. B.A. Nos.2268 and 3704 of 2024 6 They submitted that if the petitioners are granted orders of pre-arrest bail, it would certainly hamper the investigation. Hence, the applications may be dismissed. 7. The learned counsel for the 3[rd] respondent also seriously opposed the applications. She submitted that the petitioners have all attacked the 3[rd] respondent with dangerous weapons and he suffered three fractures on his body. He was treated as an inpatient in the Neyyar Medicity and had to undergo surgery. The petitioners are influential persons. If the petitioners are granted orders of pre-arrest, certainly it would sabotage the investigation. Hence, the applications may be dismissed. 8. On an evaluation of the materials on record, it can be gathered that there are specific overt acts alleged against the accused 1 to 3, who have all used iron rods and assaulted the defacto complainant. The said allegation prima facie stands corroborated by the medical records of the defacto complainant. However, that is a matter to be investigated and ultimately decided at the time of the trial. On the contrary, I find that there was no specific overt act B.A. Nos.2268 and 3704 of 2024 7 alleged against the 4[th] accused, who has wrongfully restrained the defacto complainant and facilitated the accused 1 to 3 to commit the above assault to the 3[rd] respondent. 9. 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 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. B.A. Nos.2268 and 3704 of 2024 8 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”. 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 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 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 overall consideration of the facts, rival B.A. Nos.2268 and 3704 of 2024 9 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 accused 1 to 3, the prima facie materials to substantiate the involvement of the accused 1 to 3 in the crime, that their custodial interrogation is necessary and recovery is to be effected, I am not convinced that the accused 1 to 3 petitioners have made any satisfactory ground to invoke the discretionary jurisdiction of this Court under Sec.438 of the Code. On the contrary, since there is no specific overt act alleged against the 4[th] accused, so as to attract the offence under Section 308 and 326 of the IPC, I am satisfied that the 4[th] accused has made a valid ground to invoke the discretionary jurisdiction of this Court. In the result: - 1) B.A.No.2268 of 2024 filed by the 1[st] accused is dismissed. - 2) B.A.No.3704 of 2024 filed by the accused 2 and 3 is dismissed. - 3) The application filed by the 4[th] accused/3[rd] petitioner in B.A. Nos.2268 and 3704 of 2024 10 - B.A.No.3704 of 2024 is allowed subject to the following conditions: - (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties each for the like amount each; - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioner shall not directly or indirectly make any inducement or threat to the defacto complainant or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioner shall surrender his passport before B.A. Nos.2268 and 3704 of 2024 11 - the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before the said court within the said period; - (vi) The petitioner shall not get involved in any other offence while on bail; - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC B.A. Nos.2268 and 3704 of 2024 12 663]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- rkc/01.08.2024 **C.S.DIAS, JUDGE** B.A. Nos.2268 and 3704 of 2024 13 ## **APPENDIX OF BAIL APPL. 3704/2024** |**PETITIONER ANNEXURES**||| |---|---|---| |**Annexure A**|**FIR & FIS IN **|**CRIME NO. 217/2024 OF**| ||**KATTAKKADA POLICE STATION**|| |**Annexure B**|**TRUE COPY OF THE**|**TREATMENT RECORDS OF THE**| ||**1ST PETITIONER**|| |**Annexure C**|**TRUE COPY OF THE**|**TREATMENT RECORDS OF THE**| ||**3RD PETITIONER**|| |**Annexure D**|**TRUE COPY OF THE COMPLAINT FILED BY THE 1ST**|| ||**& 3RD PETITIONER'S PARENTS BEFORE DISTRICT**|| ||**POLICE CHIEF AND THE ACKNOWLEDGEMENT**|| ||**RECEIPT RECEIVED AGAINST THE COMPLAINT**|| |**Annexure E**|**TRUE COPY OF THE**|**ORDER IN CRL.M.C. 515 OF**| ||**2024**<br>**BEFORE**|**THE**<br>**SESSIONS**<br>**COURT**| ||**THIRUVANANTHAPURAM**|| B.A. Nos.2268 and 3704 of 2024 14 ## **APPENDIX OF BAIL APPL. 2268/2024** ## **PETITIONER ANNEXURES** **Annexure -1 A TRUE COPY OF FIR AND FIS IN CRIME NO.217/2024 OF KATTAKADA POLICE STATION, THIRUVANANTHAPURAM** **Annexure -2** **A TRUE COPY OF THE ORDER DATED 12.03.2024 IN CRL.MC NO.515/2024 BY THE SESSIONS COURT, THIRUVANANTHAPURAM**