Jomon VM 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. 160 OF 2024 ``` ``` CRIME NO.1298/2023 OF NARAKKAL POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER IN CRMC 3403/2023 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ``` ## `PETITIONER:` ``` JOMON VM AGED 55 YEARS S/O. MICHEL, VYMEL HOUSE, MURIKKUMPADAM, ELAMKUNNAPUZHA, ERNAKULAM., PIN – 682508 ``` ``` BY ADVS.K.R.JITHIN SUDARSANA S. ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` PP SMT NIMA JACOB ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.160/2024 -:2:- Dated this the 13[th] day of February,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 second accused in Crime No.1298/2023 of Njarakkal Police Station, Ernakulam, registered against the accused (two in number) for allegedly committing the offences punishable under Section 55(i) & 13 of the Abkari Act (in short, ‘Act’) and Section 6 read with Section 24 of the Cigarettes and Other Tobacco Products Act, 2003. 3. The crux of the prosecution case, is that: the Police party on getting information regarding the first accused being in possession of Indian Made Foreign Liquor[IMFL] and tobacco products at her residence, raided her house on 18.11.2023, and seized 08.00 litres of IMFL and other tobacco products. During the course B.A.No.160/2024 -:3:- of the interrogation of the first accused, she confessed that she collected the said contraband articles from the second accused – her son. Thus, the accused have committed the above offences. 4. Heard; Sri. K.R. Jithin, the learned counsel appearing for the petitioner and Smt. Nima Jacob, the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime, solely on the basis of the confession allegedly made by the first accused – his mother. The petitioner has no other criminal antecedents. The petitioner is willing to co-operate 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 seriously B.A.No.160/2024 -:4:- opposed the application. She contended that, it was the petitioner and the first accused who were doing the illicit trade. The petitioner’s custodial interrogation is necessary and recovery is to be effected. The application is hit by Section 41A of the Act. If the petitioner is granted an order of pre-arrest bail, it would hamper with the full and proper investigation of the case. Hence, the application may be dismissed. 7. The materials on record reveal that the petitioner had moved Court of Session by filing Crl.M.C.No.3403/2023. The said application was dismissed by Annexure-1 order, on the specific finding that the petitioner’s custodial interrogation is necessary and recovery is to be effected. 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 B.A.No.160/2024 -:5:- 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 B.A.No.160/2024 -:6:- 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 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 B.A.No.160/2024 -: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. 10. On a consideration of the facts, the materials placed on record, the rival submission made across the Bar, especially taking note of the fact that there are specific overt acts alleged against the petitioner, that the petitioner’s custodial interrogation is necessary and that recovery is to be effected and, further, the application is hit by Section 41A of the Act, I am of the definite view that the petitioner has not made out any exceptional circumstances entitling him to invoke the extra-ordinary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that this is not a fit B.A.No.160/2024 -:8:- 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 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 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** DST/13.02.24 //True copy// P.A. To Judge