DWARARAJ v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946** **BAIL APPL. NO. 1057 OF 2024** **CRIME NO.10/2024 OF Alathur Excise Range Office, Palakkad PETITIONER/S:** **DWARARAJ, AGED 56 YEARS S/O LAKSHMANAN, PALLIPARAM HOUSE, PALIPARAMPU, TARUR I VILLAGE, ALATHUR TALUK PALAKKAD DISTRICT, PIN - 678544** **BY ADVS. SREENATH VIJAYARAGHAVAN GODWIN JOSEPH AKHILA C. SHRUTHI SARA JACOB** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF COURT, ERNAKULAM, PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 1057 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 pre-arrest bail. 2. The petitioner is the accused in Crime No.10/2024 of the Alathur Excise Range Office, Palakkad, registered against him, for allegedly committing the offences punishable under Sections 55(i), 63 r/w Section 13 of the Abkari Act. 3. The crux of the prosecution case is that: 54 bottles containing 28.5 liters of Indian Made Foreign Liquor was found in the house of the accused. Thus, the accused committed the above offence. 4. Heard; Sri.Sreenath Vijayaraghavan, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior 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 BAIL APPL. NO. 1057 OF 2024 3 crime. There is no material to substantiate that the contraband was seized from the house of the petitioner. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report. He has stated that the petitioner has criminal antecedents since he is involved in Crime No.100/2023 of the very same Excise Range for committing a similar offence. There are intimidating materials to establish the involvement of the petitioner. 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 would 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 BAIL APPL. NO. 1057 OF 2024 4 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. **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 BAIL APPL. NO. 1057 OF 2024 5 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 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 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 BAIL APPL. NO. 1057 OF 2024 6 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. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, especially on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, that the petitioner is involved in a similar offence of the very same Excise Range Office, 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 ground 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, if the petitioner surrenders before the Investigating Officer within seven BAIL APPL. NO. 1057 OF 2024 7 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, 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** Rkc/26.03.24 BAIL APPL. NO. 1057 OF 2024 8 ## **APPENDIX OF BAIL APPL. 1057/2024** ## **PETITIONER ANNEXURES** **Annexure A1** **TRUE COPY OF THE CRIME AND OCCURRENCE REPORT**