NADHIRSHAH v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945** ## **BAIL APPL. NO. 10761 OF 2023** ## **CRIME NO.1262/2023 OF AIROOR POLICE STATION, Thiruvananthapuram PETITIONER/S:** NADHIRSHAH, AGED 24 YEARS S/O NOUSHAD, TUSANAMI FLAT, HOUSE NO.111, BLOCK NO.14, POOTHAKULAM, PARAVOOR P.O, POZHIKKARA, KOLLAM (DISTRICT), PIN - 691301 BY ADV M.RAJESH ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER, AYIROOR POLICE STATION,AYIROOR PO, THIRUVANANTHAPURAM (DIST), PIN - 695310 ## **OTHER PRESENT:** PP SMT SHYNI V O THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 10761 OF 2023 2 ## **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 1[st] accused in Crime No.1262/2023 of the Ayiroor Police Station, Thiruvananthapuram, registered against the accused (six in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 294(b), 341, 506(ii), 323, 324 and 326 r/w Section 149 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The gist of the prosecution case is that: on 17.09.2023 at around 5.30 p.m., the accused in prosecution of their common object formed an unlawful assembly and attacked the defacto complainant and caused grievous injuries on his forehead, including a fracture of his nasal bone. The 1[st] accused had hit the defacto complainant with an iron pipe which resulted the injuries. Thus, the accused have committed the above BAIL APPL. NO. 10761 OF 2023 3 offences. 4. Heard; Sri. M. Rajesh, the learned counsel appearing for the petitioner and Smt.Shyni V.O, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner was only the 6[th] accused in the above crime. There is no specific overt act alleged against the petitioner. The petitioner is totally innocent of the accusations leveled against him. The petitioner is willing to abide by any stringent condition that may be abide by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner is the 1[st] accused in the above crime. It is the petitioner who caused injury to the defacto complainant. She made available the treatment certificate of the defacto complainant issued by the Travancore Medical College Hospital, Thiruvananthapuram dated 17.09.2023, to substantiate the fact that the injured had suffered a fracture of his nasal bone and had to undergo a surgery. She submitted BAIL APPL. NO. 10761 OF 2023 4 that the petitioner's custodial interrogation is necessary and the recovery is to be effected. 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 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; BAIL APPL. NO. 10761 OF 2023 5 (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 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. BAIL APPL. NO. 10761 OF 2023 6 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 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. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and especially after perusing the treatment records of the injured which shows that the injured had suffered a fracture of the nasal bone, and on comprehending the fact that the investigation in the case is at the nascent stage, 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 grounds to invoke the extra ordinary BAIL APPL. NO. 10761 OF 2023 7 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. 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** Rkc/08.02.24 BAIL APPL. NO. 10761 OF 2023 8 BAIL APPL. NO. 10761 OF 2023 9 ## **APPENDIX OF BAIL APPL. 10761/2023** PETITIONER ANNEXURES Annexure 1 THE TRUE COPY OF THE FIR IN CRIME NO. 1262/2023 OF AYIROOR POLICE STATION Annexure 2 THE TRUE COPY OF THE ORDERS OF THE HON'BLE SESSIONS JUDGE, THIRUVANANTHAPURAM DATED 19.10.2023 IN CRL MC NO. 2552/2023