PRADEEP, AJUMON P.S., BIJUMON P.S, MUFEED K.K, ILLIYAS V.A, AJMAL K.A., SHAMEER V.H. versus STATE OF KERALA

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 670 OF 2024 ``` ``` CRIME NO.2/2024 OF KALAMASSERY POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER IN CRMC 164/2024 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM ``` ## `PETITIONERS/ACCUSED 4 TO 10:` ``` 1PRADEEP AGED 50 YEARS S/O. E.K. VASU, VALIYAPARAMBIL HOUSE, VATTEKUNNAM, ERNAKULAM,, PIN – 682024 2AJUMON P.S. AGED 46 YEARS S/O. SATHIKA P.K., PARUTHELIPARAMBIL HOUSE, KANNIKANDAM, VATTEKUNNAM, ERNAKULAM, PIN – 682024 3BIJUMON P.S AGED 44 YEARS S/O. SATHIKA P.K., PARUTHELIPARAMBIL HOUSE, KANNIKANDAM, VATTEKUNNAM, ERNAKULAM, PIN – 682024 4MUFEED K.K AGED 32 YEARS S/O. KUNJUMOHAMMED, VALIYAVEEDU HOUSE, VATTEKUNNAM, ERNAKULAM,, PIN - 682024 5ILLIYAS V.A AGED 32 YEARS S/O. V.K. ABDUL LATHEEF, VALIYAVEEDU HOUSE, VATTEKUNNAM, ERNAKULAM, PIN – 682024 6AJMAL K.A. AGED 33 YEARS S/O. AZEEZ K.S., KARUVELIPARAMBU HOUSE, VATTEKUNNAM, ERNAKULAM, PIN – 682024 7SHAMEER V.H. AGED 35 YEARS S/O. HANEEFA, VALIYAVEEDU HOUSE, ``` B.A.No.670/2024 -:2:- ``` VATTEKUNNAM, ERNAKULAM, PIN – 682024 ``` ``` BY ADVS.K.R.VINOD M.S.LETHA NABIL KHADER RAHUL S. ``` ## `RESPONDENTS:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.670/2024 -:3:- Dated this the 5[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 petitioners are the accused Nos.4 to 10 in Crime No.2/2024 of Kalamassery Police Station, Ernakulam, registered against the accused (10 in number) for allegedly committing the offences punishable under Sections 143, 144, 147, 294(b), 452, 323, 324, 326, 307, 506 read with Section 149 of the Indian Penal Code, 1860. 3. The concise case of the prosecution is that: on 01.01.2024, at about 2.30 a.m., the accused in prosecution of their common intention, formed an unlawful assembly and assaulted the de-facto complainant and his friends named ‘Praveen’ and ‘Manoj’, with deadly weapons like wooden sticks and B.A.No.670/2024 -:4:- iron rods. The first accused slapped the de-facto complainant and the other accused assaulted them with deadly weapons. When they tried to run away from the scene and hide in the house of Praveen, the accused chased them, trespassed into the house and the first accused beat Manoj on his head with a wooden reaper, causing a skull fracture. He also committed the mischief of destroying the windows of the house. Even though the de-facto complainant again attempted to run away, the accused chased him and beat him on his leg with iron rods and wooden sticks. The de-facto complainant sustained a fracture. Hence, the accused have committed the above offences. 4. Heard; Sri. K.R.Vinod, the learned counsel appearing for the petitioners and Sri. C.S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. B.A.No.670/2024 -:5:- 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. Even going by the allegation in Annexure-A1 First Information Report[FIR], there is no specific overt acts alleged against the petitioners. At any rate, the petitioners’ custodial is not and no interrogation necessary recovery is to be effected. The petitioners are willing to co-operate with the Investigating Officer and abide by any stringent condition 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 there are specific overt acts alleged against all the accused. All the accused formed themselves into an unlawful assembly and beat the de-facto complainant and his friends with wooden reapers and iron rods. The B.A.No.670/2024 -:6:- injured had suffered serious injuries. He made available the accident register-cum-wound certificates dated 01.01.2024, to substantiate that the injured named, Unni had suffered a fracture on his right knee and various other wounds, the injured Manoj suffered a chop wound of 7x1 Court of the Munsiff, chop wound on the cranial bone on the front of the head and was referred for consultation. The neurosurgery petitioners’ custodial interrogation is necessary and recovery is to be effected. The accused Nos.7 & 10 have criminal antecedents. If the petitioners are granted an order of pre-arrest bail, they would intimidate the witnesses, tamper with the evidence and the same would hamper with the investigation. Hence, the application may be dismissed. 7. On an evaluation of the materials placed on record, it is evident from Annexure-A1 FIR, that there are specific overt acts alleged against all the accused. B.A.No.670/2024 -:7:- It is seen that all of them have used sticks and iron rods to assault the injured. 8. 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; B.A.No.670/2024 -:8:- (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 B.A.No.670/2024 -:9:- 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. ## 9. 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. 10. On an anxious consideration to the materials placed on record, the rival submission made across the Bar, and taking into account the nature, gravity, and seriousness of the offence alleged against the petitioners, that the investigation in the case is at its B.A.No.670/2024 -:10:- nascent stage, that the custodial interrogation of the petitioners are necessary and the recovery is to be effected, I am of the definite view that the petitioners have not made out any exceptional circumstances entitling them to invoke the extra ordinary jurisdiction of this Court under Section 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. 11. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move 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 petitioners do not B.A.No.670/2024 -:11:- surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** DST/05.02.24 //True copy// P.A. To Judge