Kerala High Court
Haris vs State Of Kerala on 3 April, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
BAIL APPL. NO. 2049 OF 2024
CRIME NO.65/2024 OF Kunnamkulam Police Station, Thrissur
AGAINST THE ORDER DATED 04.03.2024 IN CRMC NO.186 OF 2024
OF DISTRICT COURT & SESSIONS COURT,THRISSUR
PETITIONERS:
1 HARIS,
AGED 36 YEARS
S/O KUNJIPPALU, KAMMALA MURIYIL,
VILLANNUR, PAZHANJI, KUNNAMKULAM,
THRISSUR DISTRICT, PIN - 680542
2 MUNAVAR,
AGED 26 YEARS
S/O MUSTHAFA, VALIYAKATH (H),
VILLANNUR, PAZHANJI, KUNNAMKULAM,
THRISSUR DISTRICT, PIN - 680542
3 MAJEED,
AGED 33 YEARS
S/O MOIDEEN, PULAKKAL (H), KOTTOL,
PAZHANJI, KUNNAMKULAM,
THRISSUR DISTRICT, PIN - 680542
4 RAFEEK,
AGED 35 YEARS
S/O ABU, CHAKKARATTAYIL (H),
VILLANNUR, PAZHANJI, KUNNAMKULAM,
THRISSUR DISTRICT, PIN - 680542
BY ADVS.
N.U.HARIKRISHNA
MITHUN BABY JOHN
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
SR PP SRI C S HRITHWIK
B.A.No.2049 of 2024
-:2:-
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.2049 of 2024
-:3:-
ORDER
Dated this the 3rd day of April, 2024
The application is filed under Section 438 of the
Code of Criminal Procedure, 1973, for an order of pre-
arrest bail.
2. The petitioners are the accused 1 to 4 in Crime
No.65/2024 of the Kunnamkulam Police Station, Thrissur,
registered against them for allegedly committing the
offences punishable under Sections 143, 147, 148, 341,
323, 324, 326 and 308 r/w Section 149 of the Indian
Penal Code.
3. The essence of the prosecution case is that: on
11.01.2024, at around 16.15 hours, the accused, in
prosecution of their intention, formed themselves into an
unlawful assembly with deadly weapons, and wrongfully
restrained the defacto complainant and his friends. The
first accused hit on the face of the defacto complainant
using a knuckle duster, and he suffered a nasal bone
fracture. Thereafter, the accused repeatedly hit the
defacato complainant on his face. It is only because he
warded off the attack, he did not lose his life. The other
accused also attacked the defacto complainant by hitting
him on different parts of his body. Thus, the accused
have committed the above offences.
4. Heard; Sri.N.U. Harikrishna, the learned
counsel appearing for the petitioners and Smt.Seetha.S.,
the learned Senior 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. The offences under
Sections 326 and 308 of the IPC will not be attracted
against the accused. In any given case, the specific overt
act is alleged against the first accused, who assaulted
the defacto complainant with a knuckle duster, which
resulted in a nasal bone fracture. Therefore, the offences
under Sections 308 and 326 of the IPC cannot be
attributed against the accused 2 to 4. The petitioners
are persons without criminal antecedents. 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 during the pendency of
the bail application, the second accused has been
arrested. Therefore, the bail application has to be
confined with regard to the accused 1, 3, and 4. She
stated that there is a specific overt act alleged against
the first accused, who assaulted the defacto complainant
with the knuckle duster and caused a nasal bone
fracture. She made available the Accident Register-Cum-
Wound Certificate of the four injured in the incident
issued by the Ansar Hospital, Perumpilavu, dated
22.01.2024 pertaining to the examination conducted on
11.01.2024 to substantiate the fact that the injured
named Anshad had suffered a nasal bone fracture. She
submitted that the above treatment records will
corroborate with the prosecution allegation. She also
contended that the first petitioner's custodial
interrogation is necessary and recovery is to be effected.
If the first accused is granted an order of pre-arrest bail,
it would hamper with the full and proper investigation.
Nonetheless, she did not dispute the fact that there is no
specific overt act alleged against the accused 3 and 4 so
as to attract the offences under Sections 326 and 308 of
the IPC.
7. On an evaluation of the materials placed on
record, it is seen that the specific overt act is alleged
against the first accused, who used a knuckle duster and
assaulted the defacto complainant, which has resulted in
a fracture of his nasal bone. The said accusations of the
prosecution prima facie stand corroborated with the
Accident Register-Cum-Wound Certificate of the injured
named Anshad. However, there is no specific allegation
as against the accused 3 and 4.
8. Recently, in Srikant Upadhyay v. State of
Bihar [2024 KHC OnLine 6137] the Hon'ble Supreme
Court, after referring to a plethora of judgments on the
powers under Section 438 of the Code has observed as
follows:
"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). xxx xxx xxxx xxx
10. xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
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. ..... ......"
9. In Jai Prakash Singh v. State of Bihar and
Anr. [(2012) 4 SCC 379], the Hon'ble Supreme Court has
held that an order of a pre-arrest bail is an extraordinary
privilege, which should be granted only in exceptional
cases. The judicial discretion conferred upon the court
must be properly exercised after proper application of
mind to decide whether it is a fit case for grant of
anticipatory bail. The Court has to be prima facie
satisfied that the accusation levelled against the
applicant is only to enrope him in the crime and to
misuse his liberty.
10. After bestowing my anxious consideration to the
facts, the materials placed on record, and the rival
submissions made across the Bar, especially taking into
consideration the Accident Register-Cum-Wound
Certificate of the injured, Anshad, which prima facie
shows that he suffered a nasal bone fracture, which was
allegedly inflicted by the first accused, I am convinced
that the first accused has not made out any exceptional
ground to invoke the extraordinary jurisdiction of this
Court under Section 438 of the Code. Hence, the
application of the first accused is only to be dismissed.
Nonetheless, since there is no specific overt act alleged
against the accused 3 and 4, and with regard to the
commission of offences under Sections 326 and 308 of
the IPC, I am of the view that the said accused are
entitled to an order of pre-arrest bail.
Resultantly;
(i) The application filed by the first accused is
dismissed.
(ii) The application filed by the accused 3 and 4 is
allowed, subject to the following conditions:
i) The accused 3 and 4 are directed to surrender before
the Investigating Officer within ten days from today.
ii) In the event of the arrest of accused 3 and 4, 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 accused 3 and 4 on bail on them executing a
bond for Rs.50,000/- (Rupees fifty thousand only) each with
two solvent sureties for the like amount each, to the
satisfaction of the jurisdictional court;
iv) The accused 3 and 4 shall co-operate with the
investigation and make themselves available for
interrogation as and when the Investigating Officer directs;
v). The accused 3 and 4 shall not intimidate the
witnesses or interfere with the investigation in any manner;
vi). The accused 3 and 4 shall surrender their passports,
if any, before the court below at the time of execution of the
bond. If they have no passports, they shall file an affidavit to
the effect before the court below on the date of execution of
the bond;
(vii) The accused 3 and 4 shall not get involved in any
other offence while on bail.
viii). 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.
ix). Applications for deletion/modification of the bail
conditions shall also be filed before the court below.
x) 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 accused 3 and 4 even while the they 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/-
C.S.DIAS,JUDGE
mtk/03.04.24
APPENDIX OF BAIL APPL. 2049/2024
PETITIONER ANNEXURES
Annexure A-1 A TRUE COPY OF THE F.I.R DATED 12/01/2024
IN CRIME NO. 65/2024 REGISTERED BY
KUNNAMKULAM POLICE STATION
Annexure A-2 A TRUE COPY OF THE F.I.R DATED 13/01/2024
IN CRIME NO. 73/2024 OF KUNNAMKULAM
POLICE STATION
Annexure A-3 A TRUE COPY OF THE ORDER DATED 04/03/2024
IN CRL.M.C NO. 186 OF 2024 ON THE FILES
OF THE HON'BLE SESSIONS JUDGE'S COURT,
THRISSUR
