Anil S v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 1088 OF 2024 ``` ``` CRIME NO.712/2023 OF Vazhakulam Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT WP(C) 42715/2023 OF HIGH COURT OF ``` ``` KERALA ``` ## _`PETITIONER(S):`_ ``` ANIL S AGED 40 YEARS S/O STEPHEN D JOYI VILASOM, NELLIMUKKU JUNCTION, PADAPPAKKARA, PERAYAM, KOLLAM, PIN – 691601 BY ADV M.L.SURESH KUMAR ``` ## _`RESPONDENT(S):`_ ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## _`BY ADV:`_ ``` SRI C S HRITHWIK, SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 1088 OF 2024 ``` **==> picture [23 x 8] intentionally omitted <==** ## _`ORDER`_ The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail. 2. The petitioner is the 3[rd] accused in Crime No.712/2023 of the Vazhakulam Police Station, Ernakulam, registered against the accused (three in number) for allegedly committing the offences under punishable under Sections 406, 420 and 34 of the Indian Penal Code. 3. The essence of the prosecution case is that: the accused manipulated the single digit lottery tickets by putting a fake number and sold it to the de facto complainant and unlawfully gained Rs.2,000/-. Thus, the accused have committed the above offences. 4. Heard; Sri. M.L.Suresh Kumar, the learned counsel appearing for the petitioner and Sri.C.S. ``` BAIL APPL. NO. 1088 OF 2024 ``` ``` -3- ``` Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel 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 petitioner has no involvement in the case. In fact, the petitioner had approached this Court by filing W.P.(C)No. 42715 of 2023 against Police harassment. Subsequently, to wreck vengeance on the petitioner, the Investigating Officer has implicated the petitioner in the above crime. The petitioner’s custodial interrogation is not necessary and no recovery is be effected from the petitioner. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. He contended that, the petitioner is a person with criminal antecedents. The petitioner is involved in thirteen other crimes registered by the same ``` BAIL APPL. NO. 1088 OF 2024 ``` ``` -4- ``` Police Station for committing similar offences. There are other cases registered against the petitioner by other Police Stations. The investigation in the case is only at the preliminary stage. The petitioner’s custodial interrogation is necessary, and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it will hamper the investigation. Hence, the application may be dismissed. 7. 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 ``` BAIL APPL. NO. 1088 OF 2024 ``` ``` -5- ``` 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; ``` BAIL APPL. NO. 1088 OF 2024 ``` ``` -6- ``` (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; ``` BAIL APPL. NO. 1088 OF 2024 ``` ``` -7- ``` (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. 8. 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 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 ``` BAIL APPL. NO. 1088 OF 2024 ``` ``` -8- ``` 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 would misuse his liberty. 9. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar and on comprehending the nature seriousness and gravity of the offences alleged against the petitioner, that the petitioner is a person with criminal antecedents, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am of the definite view that the petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. ``` BAIL APPL. NO. 1088 OF 2024 ``` ``` -9- ``` 10. 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 move application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. If the petitioner do 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 this case. Sd/- ``` C.S.DIAS JUDGE ``` ``` vv ``` ``` BAIL APPL. NO. 1088 OF 2024 ``` ``` -10- ``` ## _`APPENDIX OF BAIL APPL. 1088/2024`_ ``` PETITIONER ANNEXURES ``` ``` Annexure 1TRUE COPY OF THE FIR NO.712/2023 OF VAZHAKULAM POLICE STATION Annexure 2TRUE COPY OF THE JUDGMENT IN WP(C) NO.42715/2023 DATED 12-01-2024 ```