Binu v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 BAIL APPL. NO. 1127 OF 2024** **CRIME NO.2095/2023 OF Chavara Police Station, Kollam** ## **PETITIONER:** **BINU AGED 30 YEARS S/O VIJAYAN, THACHEYAZHATHU VEEDU THOTTINU VADAKKU MURI, CHAVARA KARUNAGAPPALLY, KOLLAM, PIN - 691583** **BY ADV O.MINCY** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER, CHAVARA POLICE STATION) KOLLAM DISTRICT, PIN - 691590** **sr pp smt neema t v** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 1127 OF 2024** **2** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of prearrest bail. 2. The petitioner is the 1[st] accused in Crime No.2095/2023 of the Chavara Police Station, Kollam, registered against the accused for allegedly committing the offences punishable under Sections 451,341,294(b) and 384 read with Section 34 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The e s s e n c e of the prosecution case is that: on 18.12.2023, at around 22 hours, the accused trespassed into the shop run of the de facto complainant's brother named Haris, with intent to extort money from them, and the accused caught hold on the neck of Haris and the de facto complainant and **BAIL APPL. NO. 1127 OF 2024** **3** criminally intimidated them and demanded money from the said person. Thus, the accused have committed the above offences. 4. Heard; Sri.Mincy.O, the learned counsel appearing for the petitioner and Smt.Neema T.V, the learned Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him and he has been falsely implicated in the crime. Section 384 of the IPC is incorporated only for the purpose of denying bail to the petitioner. At any rate, the offence under Section 384 will not be attracted. Therefore, the petitioner's custodial interrogation is not necessary. No recovery is to be effected. Hence, the application may be allowed. **BAIL APPL. NO. 1127 OF 2024** **4** 6. The learned Public Prosecutor vehemently opposed the application. She contended that the petitioner is a person with criminal antecedents. The petitioner is involved in 12 other cases of similar nature. 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 with the investigation. Hence, the application may be dismissed. 7. The materials on record would substantiate that the petitioner had already moved a similar application before the Court of Session, Kollam, and by Annexure A2 order the application was dismissed on the principle ground that the petitioner is involved in twelve other cases of similar nature. And, the accusations levelled against the petitioner are serious in nature. Hence, it was found that the **BAIL APPL. NO. 1127 OF 2024** **5** petitioner was not entitled to pre-arrest bail. 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 anticipatory bail should necessarily 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. **BAIL APPL. NO. 1127 OF 2024** **6** **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; (112.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; (112.iii) The possibility of the applicant to flee from justice; (112.iv) The possibility of the accused's likelihood to repeat similar or other offences; (112.v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (112.vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (112.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; (112.viii) While considering the **BAIL APPL. NO. 1127 OF 2024** **7** 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; (112.ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (112.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. 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 **BAIL APPL. NO. 1127 OF 2024** **8** 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. 10. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submission made across the Bar, and taking into account the nature, gravity, and seriousness of the offences alleged against the petitioner, which I prima facie find to be attracted, that the investigation in the case is at its nascent stage, that the custodial interrogation of the petitioner is necessary and recovery is to be **BAIL APPL. NO. 1127 OF 2024** **9** effected. I am convinced that the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 11. 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 moves an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits. **Sd/- C.S.DIAS JUDGE** lsn