Thahnoon; Al Ameen; Shiras A.N 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. 2277 OF 2024** **CRIME NO.223/2024 OF Attingal Police Station, Thiruvananthapuram PETITIONER/S:** **1 THAHNOON AGED 22 YEARS S/O. SAFEER AHAMMAD KOYA RESIDING AT NAHARLAND, KAVUNADA ALAMCODE P.O AND VILLAGE CHIRAYINKEEZHU THALUK THIRUVANANTHAPURAM DISTRICT, PIN - 695102** **2 AL AMEEN AGED 22 YEARS S/O. SAKKEER HUSSAIN VV HOUSE KAVUNADA ALAMCODE P.O AND VILLAGE CHIRAYINKEEZHU THALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695102** - **3 SHIRAS A.N AGED 23 YEARS S/O. ASEEM RESIDING AT SHIRAS MANZIL, KAVUNADA, ALAMCODE P.O AND CHIRAYINKEEZHU VILLAGE THIRUVANANTHAPURAM DISTRICT, PIN - 695102** **BY ADV M.R.SARIN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 DEPUTY SUPERINTENDENT OF POLICE OFFICE OF DEPUTY SUPERINTENDENT OF POLICE ATTINGAL, THRIRUVANANTHAPURAM-, PIN - 695101** - **3 INSPECTOR OF POLICE ATTINGAL POLICE STATION ,THIRUVANTHAPURAM, PIN - 695101** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** - **27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 2277 OF 2024 2 Dated this the 27[th] day of March, 2024 ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 1 to 3 in Crime No.223/2024 of the Attingal Police Station, Thiruvananthapuram registered against them, for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324, 326 and 394 r/w Section 34 of the Indian Penal Code (in short, 'IPC'). 3. The gravamen of the prosecution allegation is that: on 31.01.2024 at around 22.00 hours, the accused, three in number, in furtherance of their common intention, had wrongfully restrained the defacto complainant and the 1[st] accused using a stone, hit on the defacto complainant's nose and he sustained a fracture. Thereafter, the accused 2 and 3 stamped him. Subsequently, the 1[st] accused snatched the gold chain worn by the defacto complainant and the accused BAIL APPL. NO. 2277 OF 2024 3 escaped from the scene. Thus, the accused have committed the above offences. 4. Heard; Sri.Sarin, the learned counsel appearing for the petitioners and Smt.Neema T.V., the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have been falsely implicated in the crime. A reading of Annexure A1 - First Information Report as well as the First Information Statement would show that the offences under Sections 326 and 394 will not be attracted. The said offences have been deliberately incorporated for the sole purpose of denying bail to the petitioners. The petitioners are young students without any criminal antecedents. Even assuming the allegation in Annexure A1 FIR to be true, there is no specific overt act alleged against the petitioners 2 and 3 other than that they stamped on the defacto complainant. The petitioners' custodial interrogation is not necessary and no recovery is to be BAIL APPL. NO. 2277 OF 2024 4 effected. Hence, the petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the accused 1 to 3, in furtherance of their common intention, had assaulted the defacto complainant, who suffered a nasal bone fracture. She made available the accident register cum wound certificate dated 31.01.2024 to substantiate that the defacto complainant suffered a nasal bone fracture. She submitted that the petitioners' custodial interrogation is and is to be effected. If the necessary recovery petitioners are granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. 7. The petitioners had moved a similar application before the Court of Session, Thiruvananthapuram, by filing Crl.M.C.No.494/2024. By Annexure A2 order, the learned Sessions Judge, Thiruvananthapuram, dismissed the application on the ground that the petitioners' custodial interrogation is necessary and recovery is to be BAIL APPL. NO. 2277 OF 2024 5 effected. 8. On a careful scrutiny of the allegations in Annexure A1 FIR and the First Information Statement, it can be seen that it was the 1[st] accused, who assaulted the defacto complainant with a stone, which resulted in his nasal bone getting fractured. Likewise, it was the 1[st] accused, who snatched the gold chain of the defacto complainant. Therefore, prima facie, the offences under Sections 326 and 394 of the IPC can only be attributed against the 1[st] accused. The only accusation leveled against the accused 2 and 3 is that they stamped the defacto complainant. Therefore, I am of the firm view that the petitioners 2 and 3 are entitled to an order of pre-arrest bail. Taking into account the specific overt act alleged against the 1[st] petitioner/ 1[st] accused, prima facie, I am satisfied that the offences under Section 326 and 394 are attracted against him. Hence, I hold that the 1[st] petitioner is not entitled to an order of pre-arrest bail. 9. In **Srikant Upadhyay v. State of Bihar [** 2024 KHC OnLine 6137], the Hon’ble Supreme Court, after BAIL APPL. NO. 2277 OF 2024 6 ## referring to the earlier precedents on the point, has succinctly laid down the law 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 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). 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 xxx xxx” ## 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 BAIL APPL. NO. 2277 OF 2024 7 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. 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record and the findings rendered above, and taking into account that the 1[st] petitioner's/ 1[st] accused's custodial interrogation is necessary and recovery is to be effected, I am of the firm view that the 1[st] petitioner has not made out any convincing ground to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I reject the application of the 1[st] petitioner/ 1[st] accused. Nonetheless, in view of my findings rendered above, I hold that the petitioners 2 and 3 / accused 2 and 3 are entitled to an order of pre-arrest bail. In the result: BAIL APPL. NO. 2277 OF 2024 8 1. The application filed by the 1[st] petitioner is dismissed. 2. The application filed by the petitioners 2 and 3/ accused 2 and 3 is allowed subject to the following conditions: i) The petitioners 2 and 3 are directed to surrender before the Investigating Officer within ten days from today. ii) In the event of the 2[nd] and 3[rd] petitioners' arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the petitioners 2 and 3 on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties each for the like amount each, to the satisfaction of the jurisdictional court; iv) The petitioners 2 and 3 shall co-operate with the investigation and make themselves available for BAIL APPL. NO. 2277 OF 2024 9 interrogation and for the purpose of investigation as and when the Investigating Officer directs; v). The petitioners 2 and 3 shall not intimidate the witnesses or interfere with the investigation in any manner; vi). The petitioners 2 and 3 shall not get involved in any other offence while on bail. vii). In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. viii). Applications for deletion/modification of the bail conditions shall also be filed before the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners 2 and 3 even BAIL APPL. NO. 2277 OF 2024 10 while the petitioners 2 and 3 are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. sd/- rkc/27.03.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 2277 OF 2024 11 ## **APPENDIX OF BAIL APPL. 2277/2024** ## **PETITIONER ANNEXURES** **Annexure A1 THE TRUE COPY OF THE FIR IN CRIME NO 223/2024 OF THE ATTINGAL POLICE STATION Annexure A2 THE TRUE COPY OF ORDER IN CRLMCNO 494/2024 OF THE SESSION JUDGE THIRUVANTHAPURAM DATED 02.03.2024**