IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939 Crl.MC.No. 1397 of 2018 CRMP 427/2018 OF CHIEF JUDICIAL MAGISTRATE COURT,MANJERI CRIME NO. 16/2018 OF KARIPUR POLICE STATION , MALAPPURAM PETITIONER/DEFACTO COMPLAINANT. MOIDEENKUTTY, AGED 46, S/O MOHAMMED, KEEZHEDATH HOUSE, C.H ROAD, MUNNIYOOR, TIRURANGADI, MALAPPURAM DISTRICT. BY ADV.SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S)/4TH ACCUSED & STATE: 1. MAHSOOF MUSTHAFA, AGED 21, S/O MUSTHAFA, UNNIYALUNGAL HOUSE, BAPPUTTY HAJI NAGAR, KODINJI ROAD, CHEMMAD, MALAPPURAM DISTRICT. PIN.673002 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI. 682031. R1 BY ADVS.SRI K. RAMAKUMAR (SR) SRI.K.K.MOHAMED RAVUF R2 BY PUBLIC PROSECUTOR SRI ALEX M THOMBRA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-03-2018, ALONG WITH CRL.MC NO.1398/2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.V. Crl.MC.No. 1397 of 2018 () APPENDIX PETITIONER(S)' ANNEXURES ANNEXURE 1 TRUE COPY OF THE DISCHARGE SUMMARY DATED 14.2.2018 ANNEXURE II TRUE COPY OF THE FIRST INFORMATION REPORT DATED 13.2.2018 ANNEXURE III CERTIFIED COPY OF THE ORDER PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI (I/C), DATED 16.2.2018 ANNEXURE IV CERTIFIED COPY OF THE ORDER PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI IN [CASE NUMBER] DATED 20.2.2018. RESPONDENTS ANNEXURES: NIL /TRUE COPY/ [ENTITY] JUDGE 6.03.2018 [CR] [ENTITY], J. [CASE NUMBER] Dated this the 5th day of March, 2018 ORDER
Petitioner in both these [CASE NUMBER] is the defacto complainant in [CASE NUMBER] of the Karipur Police Station, registered for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] and [SECTION] of the [ACT]. These [CASE NUMBER] are filed under [SECTION] [ACT] as well as [SECTION] [ACT]
2. The 1st respondent in [CASE NUMBER] is the 2nd accused, and the 1st respondent in [CASE NUMBER] is the 4th accused in the crime. They were placed under arrest by the police on 15.02.2018. On the very next day, through Annexure-III order, they were granted interim bail by the learned Magistrate, who was in charge of the Chief Judicial Magistrate, Manjeri, even though, the same was opposed by the learned Assistant Public Prosecutor in charge of the case. Subsequently, on 20.02.2018, the learned Chief Judicial Magistrate, Manjeri granted regular bail to the petitioners, on the ground that as per order dated 16.02.2018 they were already on interim bail granted by his predecessor in charge.
3. It has been pointed out that this is a case in which the injured, who is the son of the defacto complainant, was brutally attacked by a group of senior students including the 1st respondent in both these [CASE NUMBER] under the guise of ragging at the college, wherein they were studying. According to the learned counsel for the 1 st respondent in [CASE NUMBER] and the learned Senior Counsel for the 1st respondent in [CASE NUMBER], the injured was admitted at the hospital as a person who sustained injuries in a RTA, and therefore, it is false to say that he was subjected to ragging at the college or he was beaten up by the accused in the crime.
4. The learned counsel for the petitioner invited the attention of this Court to Annexure-I discharge summary, which shows that initially the petitioner was admitted at the hospital with complaints of pain, swelling, and inability to open the mouth, following an alleged history of a RTA, referred from the Relief Hospital, Kondotty. It is true that at the Relief Hospital, Kondotty, he was brought by somebody who gave a version before the doctor that he sustained injuries in a RTA. The history noted by the doctor is not everything. The facts have been clearly explained by the defacto complainant, who is the father of the injured. Initially, the defacto complainant also thought that his son sustained injuries in a RTA, while he was using his motor bike.
5. According to the defacto complainant, he was informed over the phone by another student of the college that his son sustained injuries in a RTA. He went to the hospital and saw his son. His son could not communicate anything in that particular stage, especially when he could not open his mouth on account of very serious injuries sustained. The investigations by the doctor have shown that there was multifocal fracture involving body of mandible, displaced bone fragment in floor of mouth 1.5 x 0.6 cm, subluxation of right TMJ etc. Closed reduction and temporary immobilization by direct wiring was done under local anesthesia.
6. It is a fact that the injured could not open his mouth. It is a further fact that he was altogether in a shock and he could not convey to his father, as to what had actually happened. When he became relaxed after undergoing treatment, the boy could give in writing to his father as to what had happened. The boy stated that he was brutally attacked and he was beaten on his face with an iron rod by the accused, whereby he sustained very serious injuries on his face and other portions of the body.
7. It seems that the court below has considered the matter in a very casual manner. The learned Magistrate, who had originally granted interim bail, was of the view that the accused were of tender age. It is not at all a ground for granting bail, when a heinous offence has been committed by such persons. Those students were above the age of 22 years. It cannot be said that it was tender age. They were not juveniles in conflict with law; whereas, they are grave criminals had the acts alleged against them been done by them. It is a matter to be investigated into.
8. It has been pointed out before this Court that even the weapon could not be recovered with the aid of Section 27 of the [ACT], when those accused were already enlarged on bail. No ground has been stated by the learned Magistrate, who granted interim bail as to the grounds on which interim bail was granted. Above all, the regular Chief Judicial Magistrate has also taken the view that interim bail was granted, and therefore, he was bound to grant regular bail.
9. By invoking the power under [SECTION] [ACT], the regular Chief Judicial Magistrate ought to have ordered the re-arrest of the 1st respondent in both these cases, who were illegally enlarged on bail by a Magistrate without applying his mind. The investigation is now in a standstill, when these accused were enlarged on bail. It has been pointed out that the other accused have also approached the court for anticipatory bail based on the fact that two among the accused have already been enlarged on regular bail.
10. The orders passed by the then Magistrate who was in charge of the Chief Judicial Magistrate by way of interim bail and also the regular Chief Judicial Magistrate in granting bail are patently illegal, since it is in gross violation of the dictums laid out by the Apex Court in [ENTITY] Yadav v. State of U.P. and Another [AIR 2015 SC 3703 = 2016 (15) SCC 422]. In [ENTITY]'s case (Supra), the Apex Court has considered the decision in [ENTITY] v. Sudarsan Singh [2002 (3) SCC 598] wherein it was clearly laid down that the grant of bail though involves exercise of discretionary power of the court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. It was further held that the heinous nature of crimes warrants more caution as there is a grater chance of rejection bail though, however, dependent on the factual matrix of the matter.
11. In [ENTITY] (Supra), reference was made to the decision in [PRECEDENT] and it was further held as follows: