Mohamemd Faisal P vs State Of Kerala
2024 Latest Caselaw 9839 Ker

Kerala High Court

Mohamemd Faisal P vs State Of Kerala on 5 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
    FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
                     BAIL APPL. NO. 2299 OF 2024
 CRIME NO.209/2024 OF PERINTHALMANNA POLICE STATION, MALAPPURAM
PETITIONER:

          MOHAMEMD FAISAL P,
          AGED 41 YEARS
          S/O MOIDUPPA, POOONTHODI HOUSE,
          THAZHEKODE PO,PERINTHALMANNA,
          MALAPPURAM DISTRICT., PIN - 679322

          BY ADVS.     P.SAMSUDIN
                       LIRA A.B.
                       NASRIN WAHAB
                       DEVIKA E.D.


RESPONDENT:

          STATE OF KERALA,
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, PIN - 682031

OTHER PRESENT:

          SR PP SRI C S HRITHWIK

      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A.No.2299/2024

                                         -:2:-



                        Dated this the 5th day of April, 2024

                                  ORDER

The application is filed under Section 438 of the

Code of Criminal Procedure, 1973('Code', for the sake

of brevity), for an order of pre-arrest bail.

2. The petitioner is the sole accused in Crime

No.209/2024 of Perinthalmanna Police Station,

Malappuram, registered against him for allegedly

committing the offence punishable under Sections 447,

341, 326 & 506(ii) of the Indian Penal Code, 1860(in

short, 'IPC').

3. The essence of the prosecution allegation is

that: on 23.01.2024, at around 9.45 hours, the accused,

out of his previous animosity towards the de-facto

complainant, criminally trespassed into his property

and assaulted the de-facto complainant on his forehead

with a granite stone, which resulted in the de-facto

complainant suffering a fracture. The accused also

threatened the de-facto complainant that he would kill

him. Thus, the accused has committed the above

offences.

4. Heard; Sri. P. Samsudin, the learned counsel

appearing for the petitioner and Sri. C. S. Hrithwik, the

learned Senior Public Prosecutor appearing for the

respondent.

5. The learned counsel appearing for the

petitioner submitted that the petitioner is totally

innocent of the accusations levelled against him. He

has been falsely implicated in the crime. The offence

under Section 326 of the IPC has been deliberately

incorporated only for the purpose of denying bail to the

petitioner. The alleged weapon used in the incident has

already been recovered by the Investigating Officer.

Therefore, the petitioner's custodial interrogation is

not necessary. Hence, the petitioner is entitled to an

order of pre-arrest bail.

6. The learned Public Prosecutor opposed the

application. He submitted that the petitioner had

inflicted a grievous injury on the de-facto complainant.

He made available the accident register-cum-wound

certificate dated 23.01.2024 issued by the Kims Alshifa

Healthcare Pvt. Ltd. of the de-facto complainant to

substantiate the fact that the de-facto complainant

suffered a left frontal bone fracture extending to the

roof of the orbit with a left frontal thin extraaxial acute

hemorrhage. He submitted that the petitioner's

custodial interrogation is necessary and that recovery

is to be effected. If the petitioner is granted an order of

pre-arrest bail, it would sabotage the investigation.

Hence, the application may be dismissed.

7. The prosecution allegation against the

petitioner is that he trespassed into the house of the

de-facto complainant and assaulted him with a weapon,

which resulted in the de-facto complainant suffering a

left frontal bone fracture extending to the roof of the

orbit.

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 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 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 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.

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 that the applicant has been

falsely enroped in the crime and his liberty is being

misused.

10. 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).

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. ..... ......"

11. 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, seriousness and gravity of

the accusations levelled against the petitioner, that the

petitioner's custodial interrogation is necessary and

that the recovery is to be effected, I am convinced

that the petitioner has not made out any exceptional

grounds to invoke the extraordinary jurisdiction of this

Court under Section 438 of the Code. Hence, I hold

that this is not a fit case to grant order of pre-arrest

bail. Consequently, the bail application is dismissed.

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

moves an application for bail, the jurisdictional Court

shall, consider the bail application on its merits. 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 the case.

Sd/-

                                    C.S.DIAS,JUDGE
DST/05.04.24                                       //True copy//

                                                  P.A. To Judge