HARIS M.B v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 BAIL APPL.NO.4207 OF 2024 ``` ``` CRIME NO.3/2024 OF Mattannur Police Station, Kannur ``` ``` ----------------- ``` ## **`PETITIONER/ACCUSED No.4 :-`** ``` HARIS M.B, AGED 33 YEARS MEETHALTANDA HOUSE, BETOLI POST, BETTAHERI, KODAGU, KARNATAKA, PIN - 571 201 ``` ``` BY ADVS. M.P.PRIYESHKUMAR SHANAVAS NALAKATH RANDUPURAYIL ``` ## **`RESPONDENT/COMPLAINANT :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SMT.NEEMA T.V., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 17.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BAIL APPL.NO.4207 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 17th day of July, 2024** 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 fourth accused in Crime No.3/2024 of the Mattannur Airport Police Station, Kannur, which is registered against the accused, for allegedly committing the offence punishable under Section 364A r/w Section 34 of the Indian Penal Code. 3. The essence of the prosecution case is that; on 03.03.2024, at around 04:30 hrs., the son of the de facto complainant named Shibili had gone to the Kannur Airport for remitting customs duty of Rs.8.5/- lakh for the gold ornaments that were sent by the de facto complainant's husband from abroad through the first accused. Then, the accused, in furtherance of their common intention, had abducted the person named Shibili and took away the ``` BAIL APPL.NO.4207 OF 2024 ``` ``` -: 3 :- ``` money. They also threatened to murder him. Thus, the accused have committed the above offence. 4. Heard; Sri.Priyesh Kumar M.P., the learned counsel 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 crime. There is no material to show that the petitioner has committed the offence under Section 364A of the IPC. In fact, the accused 2 and 3 were granted an order of prearrest bail. Likewise, the accused 6 and 8 were enlarged on bail. The petitioner is at par with the accused 2 and 3. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that the petitioner cannot ``` BAIL APPL.NO.4207 OF 2024 ``` ``` -: 4 :- ``` claim parity with the accused 2 and 3 since they had no complicity in the crime. A reading of Annexure 1 order would show that the learned Sessions Judge had clearly found that there is no allegation against the accused 2 and 3. It was in the said background that the learned Sessions Judge granted the accused 2 and 3 an order of pre-arrest bail as per Annexure 1 order. On the contrary, the petitioner had moved a similar application before the Court of Session, Thalassery. By Annexure 4 order, the learned Sessions Judge specifically found that the petitioner along with other accused had abducted the son of the de facto complainant and threatened to murder him. Since the specific overt act is alleged against the petitioner, the petitioner is not entitled to an order of prearrest bail. The petitioner's custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. ``` BAIL APPL.NO.4207 OF 2024 ``` ``` -: 5 :- ``` 7. The prosecution allegation is that; when Shibili, the son of the de facto complainant had gone to the Kannur Airport with Rs.8.5/- lakh, to deposit the customs duty of the gold ornaments brought by the first accused, the petitioner and the other accused abducted Shibili and took away the money. They also threatened to murder Shibili. 8. The petitioner along with the ninth accused had filed a similar application before the Court of Session, Thalassery. By Annexure 4 order, the learned Sessions Judge found that the specific overt act is alleged against the petitioner. Therefore, his custodial interrogation is necessary and he is not entitled to an order of pre-arrest bail. 9. Recently, in **Srikant Upadhyay** v. **State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: ``` BAIL APPL.NO.4207 OF 2024 ``` ``` -: 6 :- ``` “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). xxx xxx xxx xxx xxx 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”. ## 10. 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 ``` BAIL APPL.NO.4207 OF 2024 ``` ``` -: 7 :- ``` 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. 11. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly considering the fact that there is specific overt act alleged against the petitioner, and on comprehending the nature, gravity, and seriousness of the accusations levelled against the petitioner, and that there are _prima facie_ materials to substantiate the petitioner’s involvement in the crime, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Section 438 ``` BAIL APPL.NO.4207 OF 2024 ``` ``` -: 8 :- ``` of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. **Sd/C.S. DIAS, JUDGE** Jvt/17.7.2024 ``` BAIL APPL.NO.4207 OF 2024 ``` ``` -: 9 :- ``` ## **`APPENDIX OF BAIL APPL.4207/2024`** ## **`PETITIONER ANNEXURES :-`** - **`Annexure 1 A TRUE COPY OF THE ANTICIPATORY BAIL ORDER OF THE SESSIONS COURT, THALASSERY IN CRL.MC 511/2024 DATED 23.03.2024`** - **`Annexure 2 A TRUE COPY OF THE ORDER IN CRL.MC 562/2024 OF THE HON'BLE SESSIONS COURT, THALASSERY DATED 27.03.2024`** - **`Annexure 3 A TRUE COPY OF THE ORDER IN CRL.MC NO. 644/2024 OF THE HON'BLE SESSIONS COURT, THALASSERY DATED 06.04.2024`** - **`Annexure 4 A CERTIFIED COPY OF THE ORDER IN CRL.MC 732/2024 OF THE HON'BLE SESSIONS COURT, THALASSERY DATED 30.04.2024`**