Binukumar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945** **BAIL APPL. NO. 9767 OF 2023** ## **CRIME NO.1201/2023 OF Nemom Police Station, Thiruvananthapuram PETITIONER/S:** BINUKUMAR, AGED 35 YEARS S/O VIJAYAN, TC 53/895, V S BHAVAN, PEREKONAM, PAPPANAMCODE P O, TRIVANDRUM, PIN - 695018 BY ADVS. SANTHAN V.NAIR SAFAL P. SALIM ## **RESPONDENT/S:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ## **OTHER PRESENT:** SR PP SMT NEEMA T V THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 9767 OF 2023 2 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.1201/2023 of the Nemom Police Station, Thiruvananthapuram, registered against him for allegedly committing the offence punishable under Section 55 (1) of the Abkari Act ('Act' for short). 3. The gist of the prosecution case is that: around 12.30 p.m. on 24.09.2023, the Sub Inspector of Police, attached to the Nemom Police Station, found the accused seated in a TATA ACE vehicle bearing No.KL-01-CH-1973, which was parked near Aruvakode Shri Bhadra Devi Temple, Pappanamcode and selling Indian made foreign liquor in '27' '500 ml' bottles. Thus, the accused has committed the above offence. 4. Heard; Sri. Santhan V.Nair, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. BAIL APPL. NO. 9767 OF 2023 3 5. The learned counsel appearing for the petitioner submitted that the petitioner is absolutely innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner has no criminal antecedents. The petitioner does not know as to what is instigated the police to make him an accused. Even if the allegation in the FIR are taken on its face value, there is nothing to link the petitioner with the above crime. The petitioner is a law abiding citizen. He is willing to cooperate with the investigation and abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor vehemently opposed the application. She contended that on seeing the Police party, the petitioner took to his heels. The vehicle from which the contraband was seized was owned by the petitioner. The petitioner has criminal antecedents. He is involved in Crime No.82/2022 for committing a similar offence under the Act. The petitioner's custodial BAIL APPL. NO. 9767 OF 2023 4 interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the proper and full investigation of the crime. Hence, the application may be dismissed. 7. The prosecution allegation is that while the petitioner saw the Police party, he ran away from the scene of occurrence. However, the contraband article was seized from the vehicle bearing No. KL-01-CH-1973, which is admittedly owned by the petitioner. It is to be remembered that the offence alleged against the petitioner falls within the sweep of Section 41A of the Abkari Act. The Investigating Officer requires custodial interrogation of the petitioner for the proper and full investigation. 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 APPL. NO. 9767 OF 2023 5 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. **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 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, BAIL APPL. NO. 9767 OF 2023 6 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 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 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 BAIL APPL. NO. 9767 OF 2023 7 and his liberty is being misused. 10. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, particularly taking note of the gravity, nature and seriousness of the accusations levelled against the petitioner, that the petitioner's custodial interrogation is necessary, that the recovery is to be effected and the application falls within the sweep of Section 41A of the Abkari Act,I am of the definite view that the petitioner has not made out any exceptional grounds to invoke the extra ordinary 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. Nonetheless, I direct that, in case the petitioner surrenders before the Investigating Officer of the concerned police station within a period of 10 days from today, he shall be interrogated and, thereafter, he be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves an BAIL APPL. NO. 9767 OF 2023 8 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 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** rkc/13.02.24 BAIL APPL. NO. 9767 OF 2023 9 ## **APPENDIX OF BAIL APPL. 9767/2023** PETITIONER ANNEXURES Annexure A TRUE COPY OF THE FIR IN CRIME NO. 1201/2023 DATED 24.09.2023 REGISTERED BY NEMOM POLICE STATION, THIRUVANANTHAPURAM Annexure B TRUE PHOTOSTAT COPY THE ORDER DATED 10.10.2023 PASSED IN CRL.MC NO. 2572/2023 BY THE HON'BLE COURT OF THE SESSIONS JUDGE, THIRUVANANTHAPURAM