Akshay K. Shal v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 BAIL APPL. NO. 5554 OF 2024 ``` ``` CRIME NO.836/2023 OF NORTH PARAVUR POLICE STATION, ``` ## **`ERNAKULAM`** ## **`PETITIONER/ACCUSED:`** ``` AKSHAY K. SHAL AGED 25 YEARS S/O. BABY SHAL, MINI MANDIRAM, PADIVATTOM, VTC, EDAPALLY, ERNAKULAM, KERALA., PIN - 682024 BY ADV BALAMURALI K.P. ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ## **`SR.PUBLIC PROSECUTOR SMT. SEETHA S.`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, ALONG WITH BA. NO.5531/2024 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.Nos.5531 & 5554 of 2024 -:2:- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 BAIL APPL. NO. 5531 OF 2024 ``` ``` CRIME NO.829/2023 OF NORTH PARAVUR POLICE STATION, ERNAKULAM ``` ## **`PETITIONER/ACCUSED:`** ``` AKSHAY K SHAL AGED 25 YEARS S/O. BABY SHAL, MINI MANDIRAM, PADIVATTOM, VTC, EDAPALLY, ERNAKULAM, KERALA., PIN - 682024 BY ADVS. BALAMURALI K.P. KRISHNAA GOKUL T.S. HARIPRIYA.M ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SMT. SEETHA S. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024,ALONG WITH B.A.NO.5554/2024 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.5531 & 5554 of 2024 -:3:- Dated this the 26[th] day of July, 2024 ## **COMMON ORDER** The applications are filed under Section 438 of the Code of Criminal Procedure, 1973 (‘Code’, for short), for orders of pre-arrest bail. 2. The petitioner is the accused in Crime Nos.829/2023 and 836/2023 of the North Paravur Police Station, Ernakulam, which are registered against him, for allegedly committing the offences punishable under Sections 406, 420, 465, 468 and 471 of the Indian Penal Code (in short, 'IPC'). 3. The crux of the prosecution case, is that: the accused while working as intern in a construction company owned by his friend’s father, forged the building permit by using the digital signature of the Municipality and received money from the de facto B.A.Nos.5531 & 5554 of 2024 -:4:- complainants. Thus, the accused has committed the above offences. 4. Heard; Sri.Balamurali K.P, the learned counsel appearing for the petitioner and Smt.Seetha S.., the learned Senior Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the above offences. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner is a person with criminal antecedents, since he is involved in four other crimes of a similar nature of the very same police station. If the petitioner is B.A.Nos.5531 & 5554 of 2024 -:5:- granted an order of pre-arrest bail, he would intimidate the witnesses and tamper with evidence. By Annexure A4 order, this Court has already dismissed the petitioner’s similar application, on the finding that the petitioner is a person with criminal antecedents. Therefore, the present applications may also be dismissed. 7. The allegation against the petitioner is that, he fabricated building permits and obtained money from the de facto complainants stating that the building permit was issued by the Paravur Municipality. Indisputably, the petitioner is involved in four other crimes of a similar nature. Therefore, in view of Section 438(ii) of the Code, the petitioner cannot aspire for an order of pre-arrest bail, since he has criminal antecedents. 8. The parameters to grant an order of pre-arrest bail have been succinctly laid down by the Hon’ble B.A.Nos.5531 & 5554 of 2024 -:6:- ## Supreme Court in **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] in the following lines: 112. The following factors and parameters can be takeninto 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 evaluaate 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 B.A.Nos.5531 & 5554 of 2024 -:7:- 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 beprevention 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. 9. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on considering the fact that the petitioner is a person with criminal antecedents, the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not satisfied that the petitioner has made out any B.A.Nos.5531 & 5554 of 2024 -:8:- satisfactory grounds to invoke the discretionary jurisdiction of this Court under Sec.438 of the Code. The applications are meritless and are only to be dismissed. Resultantly, the bail application are dismissed. SD/- **C.S.DIAS,JUDGE** `rmm26/7/20` 24