Shanavas Khan and Riyas v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 ``` ``` BAIL APPL.NO.4222 OF 2024 ``` ``` CRIME NO.574/2024 OF Anchal Police Station, Kollam ``` ``` ---------------- ``` ## **`PETITIONERS/ACCUSED No.1 :-`** ``` 1SHANAVAS KHAN, AGED 34 YEARS S/O.ABDUL RASHEED, SHAN MANZIL EDAMULACKAL, ANCHAL, PUNALUR, KOLLAM, PIN - 691 306. ``` ``` 2RIYAS, AGED 27 YEARS S/O.IBRAHIM KUTTY KUNNIL PUTHEN, VARKALA, TRIVANDRUM DISTRICT, PIN - 695 141 ``` ``` BY ADV NAHAS H. ``` ## **`RESPONDENT/RESPONDENT/STATE :-`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SMT.SEETHA S., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.4222 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 3 rd day of June, 202 4** 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 1 and 2 in Crime No.574/2024 of the Anchal Police Station, Kollam, which is registered against them, for allegedly committing the offences punishable under Sections 294(b), 323, 324, 325, 326, 308 and 506 r/w Section 34 of the Indian Penal Code. 3. The crux of the prosecution allegation is that; on 12.05.2024, at around 13.30 hrs., when the de facto complainant and his wife were supplying water for a construction work, the accused, in furtherance of their common intention, went to the site and abused the de facto complainant and his wife in obscene language. Then the first accused hit the de facto complainant's mouth with his ``` BAIL APPL.NO.4222 OF 2024 ``` ``` -: 3 :- ``` hand and he lost four tooth in the incident. The second accused hit the de facto complainant's head and he lost his balance. The first accused, thereafter, hit the de facto complainant with a wooden stick. When the de facto complainant attempted to ward off the repeated attacks of the accused, the first accused bit him on his thigh and caused grievous injuries to him. Thus, the accused have committed the above offences. 4. Heard; Sri.Nahas Habeeb, the learned counsel appearing for the petitioners and Smt.Seetha S, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. In fact in the very same incident, the petitioners have suffered grievous injuries and Annexure A4 FIR has been registered against the de facto ``` BAIL APPL.NO.4222 OF 2024 ``` ``` -: 4 :- ``` complainant. Annexure A2 Wound Certificate as well as Annexure A6 photographs would show the grievous injuries suffered by the petitioners. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to show the complicity of the petitioners in the crime. She made available the accident register-cumwound certificate of the de facto complainant dated 12.05.2024 issued by the St.Joseph's Mission Hospital, Anchal to substantiate that the de facto complainant suffered a chip fracture of the Olecranon tip. She stated that the first petitioner is a person with criminal antecedents and he is involved in a crime for allegedly committing the offence under Section 302 of the IPC. If the petitioners are granted an order of pre-arrest bail, it ``` BAIL APPL.NO.4222 OF 2024 ``` ``` -: 5 :- ``` would certainly hamper the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioners is that; they, in furtherance of their common intention, assaulted the de facto complainant with dangerous weapons and caused grievous injuries to him. The said fact _prima facie_ stands corroborated with the accident register-cum-wound certificate submitted by the learned Public Prosecutor. However, that is a matter to be investigated and decided at the time of trial. 8. Recently, in **Srikant Upadhyay** v. **State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines :- > _“8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised_ ``` BAIL APPL.NO.4222 OF 2024 ``` ``` -: 6 :- ``` _only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679)._ ## _xxxxxx xxxxxxxx xxxxxxxxx xxxxxxx xxxxxxxxxxx_ _24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx xxx”._ 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 ``` BAIL APPL.NO.4222 OF 2024 ``` ``` -: 7 :- ``` that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations levelled against the petitioners, that the petitioners' custodial interrogation is necessary and that the recovery is to be effected, I am convinced that the petitioners have not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, 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 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 ``` BAIL APPL.NO.4222 OF 2024 ``` ``` -: 8 :- ``` surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the petitioners do not 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** Jvt/5.6.2024 ``` BAIL APPL.NO.4222 OF 2024 ``` ``` -: 9 :- ``` ## **`APPENDIX OF BAIL APPL. 4222/2024`** ## **`PETITIONER ANNEXURES :-`** |**`Annexure A1`**|**`THE TRUE COPY OF THEFIR NO 574/2024 DATED`**| |---|---| ||**`12/05/2024`**| |**`Annexure A2`**|**`.THE TRUE COPY OF THE WOUND CERTIFICATE OF THE`**| ||**`FIRST PETITIONER IS PRODUCED HEREWITH AND MARKED`**| ||**`AS ANNEXURE A2`**| |**`Annexure A3`**|**`THE TRUE COPY OF THE WOUND CERTIFICATE OF THE`**| ||**`SECOND PETITIONER DATED 12/05/2024`**| |**`Annexure A4`**|**`THE TRUE COPY OF THE FIR NO 575/2024 DATED`**| ||**`12/05/2024`**| |**`Annexure A5`**|**`THE TRUE COPY OF THE OP TICKET OF THE FIRST`**| ||**`PETITIONERS OP TICKET`**| |**`Annexure A6`**|**`THE TRUE COPY OF THE PHOTO OF THE PETITIONERS`**| ||**`INJURED PICTURES`**| |**`Annexure A7`**|**`THE TRUE COPY OF THE PETITION FILED BEFORE THE`**| ||**`SUPERINTEND OF POLICE ,KOLLAM RURAL`**| |**`Annexure A8`**|**`THE TRUE COPY OF THE PETITION FILED BEFORE THE`**| ||**`CHIEF MINISTER DATED 17/05/2024`**|