Shahul Hameed and Shanif K.K. @ Shanu v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ## **`BAIL APPL. NO. 91 OF 2024`** ``` CRIME NO.2415/2023 OF MUVATTUPUZHA POLICE STATION, ERNAKULAM ``` ## **`PETITIONERS/1ST & 4 TH ACCUSED:`** ``` 1SHAHUL HAMEED AGED 43 YEARS RESIDING AT VETTIYAMKUNNEL, MULAVOOR, MUVATTUPUZHA, ERNAKULAM DIST., PIN - 686673 2SHANIF K.K.@SHANU AGED 30 YEARS S/O KUNJUMON, RESIDING AT KARUKAPILLIL, MULAVOOR, MUVATTUPUZHA, ERNAKULAM DIST., PIN - 686673 BY ADV S.JUSTUS ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 SMT SEETHA S. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO. 91 OF 2024 ``` ## **C.S.DIAS, J.** **---------------------------------------------------B.A.No. 91 of 2024 ---------------------------------------------------Dated this the 30[th] day of January, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. Petitioners are the first and fourth accused in Crime No.2415 of 2023 of Moovattupuzha Police Station, Ernakulam, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 294(b), 323, 325, 326 and 34 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The concise case of the prosecution is that: around 9.30 pm on 26.12.2023, the first accused hit the defacto complainant with a weapon, after uttering obscene words and the accused 2 and 3 kicked the ``` 3 ``` ``` BAIL APPL. NO. 91 OF 2024 ``` defacto complainant to the ground and he sustained injuries on the ribs and the fourth accused beat him with a stick. Thus, the accused have committed the above offences. 4. Heard; Sri. S. Justus, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioners submitted that, the petitioners are totally innocent of the accusations levelled against them. In fact, the Annexure A1 FIR has been registered as a counter blast to Annexure A2 FIR registered at the instance of the petitioners, who were assaulted by the injured on 26.12.2023 at around 22.50 hours. In Annexure A2 FIR, the defacto complainant and the other accused are alleged to have committed the offences punishable ``` 4 ``` ``` BAIL APPL. NO. 91 OF 2024 ``` under Section 307 IPC. Annexure A2 FIR by itself shows that Annexure A1 is a false and fabricated crime. At any rate, the petitioners’ custodial interrogation is not necessary. The recovery has been effected, hence, the petitioners are entitled for an order of pre-arrest bail. 6. The learned Public Prosecutor vehemently opposes the application. She made available the case diary and also the certificate of examination of the injured dated 27.12.2023, to establish that the injured had suffered a fracture of his 8[th] and 9[th] rib due to the assault made by the accused. The petitioners/first and fourth accused attacked the injured and caused serious injuries to him. The investigation is only at the early stage. The petitioners’ custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. ``` 5 ``` ``` BAIL APPL. NO. 91 OF 2024 ``` 7. The learned counsel appearing for the defacto complainant also opposed the application and reiterated the submissions of the learned Public Prosecutor. 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 ``` 6 ``` ``` BAIL APPL. NO. 91 OF 2024 ``` 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; (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 ``` 7 ``` ``` BAIL APPL. NO. 91 OF 2024 ``` 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 2024:KER:4965 B.A.No.11403 of 2023 -:7:- 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 selfimposed limitations. ``` 8 ``` ``` BAIL APPL. NO. 91 OF 2024 ``` 9. After bestowing my anxious consideration to the materials placed on record, particularly taking into account the nature, gravity and the seriousness of the offences alleged against the petitioners, that the investigation of the case is in progress, that the custodial interrogation of the petitioners is necessary and the recovery is to be effected, 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 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 ``` 9 ``` ``` BAIL APPL. NO. 91 OF 2024 ``` 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** BR ``` 10 ``` ``` BAIL APPL. NO. 91 OF 2024 ``` ## **`APPENDIX OF BAIL APPL. 91/2024`** ``` PETITIONERS’ ANNEXURES Annexure - A1TRUE COPY OF THE F.I.R. IN CRIME NO. 2415/2023 OF MOOVATTUPUZHA POLICE STATION, ERNAKULAM RURAL Annexure - A2TRUE COPY OF THE F.I.R. IN CRIME NO. 2410/2023 OF MOOVATTUPUZHA POLICE STATION, ERNAKULAM RURAL ``` ``` RESPONDENT’S ANNEXURES: NIL ```