Noshad v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 BAIL APPL. NO. 1519 OF 2024** **CRIME NO.85/2024 OF Mannar Police Station, Alappuzha** **PETITIONER/S:** **NOWSHAD AGED 41 YEARS S/O. ABDUL SALAM, ANZANA MANZIL, VISHAVARSERI, ERAMATHOOR PO., CHENGANNUR TALUK, ALAPPUZHA, PIN - 689622** **BY ADVS. ALEX K.JOHN NINAN THOMAS REENA JACOB** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 INSPECTOR OF POLICE MANNAR POLICE STATION, MANNAR, ALAPPUZHA DISTRICT, PIN - 689622 3 DEPUTY SUPERINTENDENT OF POLICE, CHENGANNUR CHENGANNUR P.O., ALAPPUZHA DISTRICT, PIN - 689121** ## **OTHER PRESENT:** ## **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 1519 OF 2024 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 sole accused in Crime No.85/2024 of the Mannar Police Station, Alappuzha registered against him, for allegedly committing the offence punishable under Section 153 A of the Indian Penal Code, 1860. 3. The crux of the prosecution case is that: the accused with an intention to hurt the religious sentiments of the Hindu Community and to cause a communal riot wrote a discriminatory article in his face book page to promote enmity between different groups of religion which is prejudicial to the harmony in the country. Thus, the accused has committed the above offence. 4. Heard; Sri.Alex K.Johan, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. BAIL APPL. NO. 1519 OF 2024 3 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. The petitioner did not write any article in his face book account in order to create any enmity between the Hindu and Muslim Community. The Investigating Officer has falsely incorporated Section 153 A of the IPC solely to arrest the petitioner. Despite the petitioner writing the above article, there has been no disharmony in the community. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. The petitioner is a law abiding citizen and is suffering from cardiac ailments as evidenced by Annexure A3 certificate. The petitioner is prepared to abide by any stringent conditions that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that the petitioner has consciously written the article on his face book page for the sole purpose of promoting enmity between two religious groups which would be prejudicial to the BAIL APPL. NO. 1519 OF 2024 4 maintenance of harmony in the society. The petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would certainly adversely affect the full and proper investigation of the crime. Hence, the application may be dismissed. 7. A reading of the face book post of the petitioner would prima facie show the involvement of the petitioner in the crime. Section 153A of the IPC has been incorporated with a specific intention to refrain people from speaking, writing or making signs by visible representations from igniting enmity between different groups on the grounds of religion, race, place of birth, residence and language so as to maintain the communal harmony in the society. 8. The petitioner had moved a similar application before the Court of Session, Alappuzha by filing Crl.M.P.No.460/2024. By Annexure A2 order, the learned Sessions Judge dismissed the application on prima facie being satisfied that the petitioner's face book post was a BAIL APPL. NO. 1519 OF 2024 5 calculated attempt to promote feelings of enmity and hatred in the community. On a consideration of the seriousness and gravity of the accusation leveled against the petitioner, the learned Sessions Judge dismissed the application. ## 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 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 BAIL APPL. NO. 1519 OF 2024 6 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 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 BAIL APPL. NO. 1519 OF 2024 7 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 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. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and the findings rendered by the learned Sessions Judge, Alappuzha in Annexure A2 order and on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, I am certain that the petitioner has not made out any convincing BAIL APPL. NO. 1519 OF 2024 8 grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that the application is meritless and is only to be dismissed. Resultantly, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** Rkc/27.03.24 BAIL APPL. NO. 1519 OF 2024 9 ## **APPENDIX OF BAIL APPL. 1519/2024** ## **PETITIONER ANNEXURES** **Annexure A1** **THE TRUE COPY OF THE FIR IN CRIME NO.85/2024 OF MANNAR POLICE STATION DATED 27.01.2024** **Annexure A2 THE TRUE COPY OF THE ORDER DATED 17.02.2024 OF HON'BLE SESSIONS JUDGE, ALAPPUZHA** **Annexure A3 THE TRUE COPY OF THE TREATMENT CERTIFICATE DATED 12.11.2018 OF GOVERNMENT MEDICAL COLLEGE HOSPITAL, KOTTAYAM**