S A Navas, N Abdulla and Abdul Rahman M P v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945 BAIL APPL. NO. 10998 OF 2023 ``` ## **`CRIME NO.986/2023 OF BADIADUKKA POLICE STATION, KASARGOD PETITIONERS:`** ``` 1S A NAVAS AGED 38 YEARS HUSSAIN MUSSALIAR, R/AT THANCHIBOTTU HOUSE, ULLAL TALUK, DAKSHINA KANNADA DISTRICT KARNATAKA, PIN - 574231 2N. ABDULLA AGED 47 YEARS S/O N.H. AHAMMED MOILAVI, R/AT NANDAVARA HOUSE, BANTVAL TALUK, SAJIPPA MUNNOR VILLAGE, DAKSHINA KANNADA DISTRICT KARNATAKA, PIN - 574231 3ABDUL RAHMAN M P AGED 27 YEARS S/O P K MUHAMMED, R/AT BADOOR VILLAGE, KASARAGODE TALUK & VILLAGE, PIN - 671332 BY ADVS. LEGITH T.KOTTAKKAL V.M.RUSHDA ``` ## **`RESPONDENT:`** ``` STATE OF KERALA SHO BADIADKA POLICE STATION, THROUGH BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, PIN – 682031 ``` ``` SENIOR PUBLIC PROSECUTOR SRI. C.S.HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.10998 of 2023 ## -:2:- ## **O R D E R** Dated this the 22[nd] day of January, 2024 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 2 to 4 in Crime No.986/2023 of the Badiadukka Police Station, Kasargod, registered against the accused (four in number) for allegedly committing the offences under Sections 341, 323, 324, 326 r/w Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: around 6.45 p.m., on 4.11.2023, the accused 1 to 4 wrongfully restrained the de facto complainant and voluntarily caused grievous hurt to him with dangerous weapons namely, stick. Thus, the accused have committed the above offences. ## B.A.No.10998 of 2023 ## -:3:- 4. Heard; Sri. Legith T Kottakkal, 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 there is no specific overt act alleged against the petitioners. In fact, it was the first petitioner who assaulted the de facto complainant and caused the injury. The petitioners are willing to cooperate with the investigation. Their custodial interrogation is not necessary. Hence, the petitioners may be granted an order of pre-arrest bail . 6. The learned Public Prosecutor vehemently opposed the application. He contended that the second accused hit the de facto complainant with a wood stick. Likewise, the accused 3 and 4 also assaulted the de facto complainant. The petitioners custodial interrogation is necessary. If the petitioners are B.A.No.10998 of 2023 ## -:4:- granted an order of pre-arrest bail, they would tamper with evidence and intimidate the witnesses. 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 -:5:- ## B.A.No.10998 of 2023 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 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 -:6:- ## B.A.No.10998 of 2023 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. ## 8. Likewise, in **Gurbaksh Singh Sibbia v. State** ## **of Punjab,** (1980) 2 SCC 565 ] the Hon’ble Supreme Court has held as follows: **21** . The High Court says in its fourth proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a “special case” for the exercise of the power to -:7:- ## B.A.No.10998 of 2023 grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not “unguided or uncanalised”, the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special case” for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a “special case”. We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 9. On an anxious consideration of the materials placed on record, particularly taking note of the fact the specific overt act alleged against the petitioners, that the recovery has to be effected, that and the B.A.No.10998 of 2023 ## -:8:- investigation is still in progress and that the custodial interrogation of the petitioners is necessary, I am of the definite view that the petitioners are not entitled to invoke the extra ordinary 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. 10. 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 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 petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest B.A.No.10998 of 2023 -:9:- the petitioners as if no order has been passed in this case. Sd/- **C.S.DIAS,JUDGE** rmm/24/1/2024