BINOY EMMANUEL v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 1457 OF 2024`** ``` CRIME NO.916/2023 OF VENGARA POLICE STATION, MALAPPURAM AGAINST THE ORDER/JUDGMENT DATED 13.02.2024 IN CRMC NO.69 OF 2024 OF DISTRICT COURT& SESSIONS COURT,MANJERI ``` ## **`PETITIONER/ACCUSED NO.4:`** ``` BINOY EMMANUEL AGED 47 YEARS S/O. MANI, MACHIYANICKAL HOUSE, NEAR VAYALAL HOSPITAL, MOOLAMATTOM.P.O., IDUKKI DISTRICT, PIN - 685589 BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA ABDUSSAMAD K.K. ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV SMT. NEEMA T. V. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.1457 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 1457 OF 2024 ------------------------------------------------------Dated this the 4[th] day of March, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the fourth accused in Crime No.916/2023 of the Vengara Police Station, Malappuram registered against the accused (four in number) for allegedly committing the offences punishable under Section 286 of the Indian Penal Code and Sections 49(b) and 5 of the Explosive Substances Act, 1908. 3. The crux of the prosecution case is that: on 14.11.2023 at around 12.30 hours the accused were ``` 3 ``` ## **`BAIL APPL. NO.1457 OF 2024`** found doing quarry operations and using explosives without license in a careless manner and causing threat to human life. Thus, the accused have committed the above offences. 4. Heard; Sri. K. K. Dheerendrakrishnan, the learned counsel appearing for the petitioner and Smt. Neema T. V., the learned Public Prosecutor. 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. By Annexure II order, this Court was granted an order of pre-arrest bail to the accused 1 and 2. The petitioner is at par with the said accused. Therefore, the petitioner is also entitled to a similar order, especially since the petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the ``` 4 ``` ``` BAIL APPL. NO.1457 OF 2024 ``` application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that the petitioner cannot claim parity with the accused 1 and 2. The petitioner is the owner of the property from where the explosive substances were seized. It is only of the petitioner’s custodial interrogation is conducted, there will be an effective and proper investigation in the crime. Annexure II order was passed in favour of accused 1 and 2, since prima facie it was found that they were not actively involved in the crime. The petitioner cannot seek analogy of the said order and aspire for an order of pre-arrest bail. Hence, the application may be dismissed. 7. On an appreciation of the materials placed on record, it is evident that the petitioner is the owner of the property from where the explosive substances ``` 5 ``` ## **`BAIL APPL. NO.1457 OF 2024`** were seized. Sections 4(b) and 5 of the Explosive Substances Act imposes punishment for an attempt to cause explosion or for making or keeping explosive substances with an intend to endanger life or property. The materials on record reveal that the explosive substances were seized from the property of the petitioner. Therefore, prima facie, I find that the accusations attributed against the petitioner to be attracted. 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 ``` 6 ``` ``` BAIL APPL. NO.1457 OF 2024 ``` anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in Satishchandra Ratanlal 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 ``` 7 ``` ``` BAIL APPL. NO.1457 OF 2024 ``` 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 ``` 8 ``` ``` BAIL APPL. NO.1457 OF 2024 ``` 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 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 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 ``` ## **`BAIL APPL. NO.1457 OF 2024`** 10. After bestowing my anxious consideration of the facts, the rival submissions made across the Bar, the materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that the explosive substances were seized from the property of the petitioner, I am of the definite view that the petitioner is not entitled for an order of pre-arrest bail, since his custodial interrogation is necessary, recovery is to be effected and that the investigation is at the nascent stage. If an order of pre-arrest bail is granted, it would certainly hamper with the proper and full investigation of the crime. Therefore, I hold that the petitioner is not entitled for an order of pre-arrest bail. Resultantly, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 ``` 10 ``` ## **`BAIL APPL. NO.1457 OF 2024`** 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 application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, 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 this case. **Sd/C.S. DIAS JUDGE** BR ``` 11 ``` ## **`BAIL APPL. NO.1457 OF 2024`** ## **`APPENDIX OF BAIL APPL. 1457/2024`** ``` PETITIONER’S ANNEXURES Annexure IA ``` ``` A TRUE COPY OF FIR IN CRIME NO. 916/2023 OF VENGARA POLICE STATION, MALAPPURAM DISTRICT ``` ``` Annexure-IIA TRUE COPY OF THE ORDER DATED 19.01.2024 IN BA NO. 10678/2023 PASSED BY THIS HONOURABLE COURT ``` ``` Annexure-IIICERTIFIED COPY OF THE ORDER DATED 13.02.2024 IN CRL MC NO. 69/2024 PASSED BY COURT OF SESSIONS, MANJERI ``` ``` RESPONDENT’S ANNEXURES: NIL ```