Bail Applications Nos. 2442 and 2443 of 2024

1 Bail Application Nos. 2442 and 2443 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2442 OF 2024 ``` ``` CRIME NO.78/2024 OF Atholy Police Station, Kozhikode ``` ## **`PETITIONER/S:`** ``` AKSHAY,AGED 24 YEARS S/O.DINESHAN. N, DRISHYA NIVAS, THALODE P.O., KOOTHUPARAMB, MANGATTIDAM, KANNUR, PIN - 670643 ``` ``` BY ADVS. DINESH MATHEW J.MURICKEN VINOD S. PILLAI NAYANA VARGHESE MOHAMMED THAYIB N.M. RIA VARGHESE JERRY PETER ``` ``` RESPONDENT/S: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Smt Seetha S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.04.2024 ALONG WITH BA 2443/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application Nos. 2442 and 2443 of 2024 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 BAIL APPL. NO. 2443 OF 2024 ``` ``` CRIME NO.78/2024 OF Atholy Police Station, Kozhikode ``` ## **`PETITIONER/S:`** ``` 1SHIJIN AGED 33 YEARS S/O.GANGADHARAN, KAUSTHUBHAM HOUSE, KANIYIL, CHALAKKARA NALUTHARA, P.O.MAHI, PUDUCHERRY, PIN - 673310 ``` ``` 2PRASHOB AGED 36 YEARS S/O.GOVINDAN, KUNJIKANDI PARAMBU HOUSE, KANJILERI, MALOOR.P.O., THALASSERY, KANNUR DISTRICT, PIN - 670106 ``` ``` BY ADVS. DINESH MATHEW J.MURICKEN VINOD S. PILLAI NAYANA VARGHESE MOHAMMED THAYIB N.M. RIA VARGHESE JERRY PETER ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Smt Seetha S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 02.04.2024 ALONG WITH BA 2442/24, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Bail Application Nos. 2442 and 2443 of 2024 ## **C.S.DIAS,J** **======================** ## **Bail Application Nos. 2442 and 2443 of 2024 -----------------------------------** **Dated this the 2[nd] day of April, 2024** ## **C O M M O N O R D E R** The applications are filed under Sec.438 of the Code of Criminal Procedure, for orders of pre-arrest bail. 2. In BA No.2442/2024, the petitioner is the first accused and in BA No.2443/2024 the petitioners are the accused 2 and 6 in Crime No. 78/2024 of the Atholy Police Station, Kozhikode, registered against the accused, for allegedly committing the offence punishable under Section.395 of the Indian Penal Code. 3. The essence of the prosecution case is that: on 12.2.2024 at around 12.30 hours, while the de facto complainant was carrying Rs.13/- Lakh, which was entrusted to him by one Jamsheed from Malappuram to 4 Bail Application Nos. 2442 and 2443 of 2024 distribute the same among various persons, when he reached a place near Ulliyeri petrol outlet, the accused, in furtherance of their common intention, went in a car and snatched the bag containing the money. Thus, the accused have committed the above offences. 4. Heard; Dinesh Mathew J.Murikan, the learned counsel appearing for the petitioners and Smt.Seetha.S, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. It is only out of the previous animosity of the de facto complainant, that he has lodged the false complainant against the petitioners. The petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the applications may be allowed. 5 Bail Application Nos. 2442 and 2443 of 2024 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to substantiate the involvement of the petitioners in the above crime. The petitioners are persons with criminal antecedents since they are involved in similar offences. The petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted orders of prearrest bail, it would sabotage the investigation. Hence, the applications may be dismissed. 7. On an evaluation of the materials placed on record, it is seen that the allegation against the petitioners is that, they, in furtherance of common intention, had attacked the de facto complainant and robbed the money he was carrying. The materials also show that the petitioners are persons with criminal antecedents since they are involved in similar offences. The petitioner in BA 2442/2024 had filed an application before the Court of Session, Kozhikode, under Sec.438 6 Bail Application Nos. 2442 and 2443 of 2024 of the Code. By Annexure A1 order, the learned Sessions Judge dismissed the application on finding that the accusations levelled against the petitioner is serious, the petitioner’s custodial interrogation is necessary and recovery is to be effected. 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 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. 9. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137], the Hon’ble Supreme Court, after 7 Bail Application Nos. 2442 and 2443 of 2024 referring to the earlier precedents on the point, has succinctly laid down the law in the following lines: 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. xxx xxx xxx xxx xxx” 8 Bail Application Nos. 2442 and 2443 of 2024 10. 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 petitioners, that the petitioners’ custodial interrogation is necessary and that the recovery is to be effected and moreover, the petitioners are persons with criminal antecedents, I am convinced that the petitioners have not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that these are not fit cases to grant orders of pre-arrest bail. Consequently, the bail applications are dismissed. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court 9 Bail Application Nos. 2442 and 2443 of 2024 on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in these cases. sd/- sks/2.4.2024 **C.S.DIAS, JUDGE**