Kalesh @ Kannan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945 ``` ## **`BAIL APPL. NO. 11403 OF 2023`** ## **`CRIME NO.2437/2023 OF Palarivattom Police Station, Ernakulam`** ## **`PETITIONER/S:`** ``` KALESH @ KANNAN AGED 38 YEARS S/O KARUNAKARAN, VAKKATTU HOUSE, VENNILA POST, EDAPPALLY SOUTH VILLAGE, ERNAKULAM DISTRICT., PIN - 682028 BY ADVS. BINU V V VEETTIL VALAPPIL K.BINNI ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.SEETHA.S,SENIOR PUBLIC PROSECUTOR SRI.SIVARAM – DEFACTO COMPLAINANT ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.11403 of 2023 -:2:- ## **C.S.DIAS,J** **======================** **Bail Application No11403 of 2023 ----------------------------------Dated this the 22[nd] day of January, 2024** ## **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 first accused in Crime No.2437/2023 of the Palarivattom Police Station, Ernakulam, registered against the accused (two in number) for allegedly committing the offences punishable under Sections 436,120(B) read with Sec.34 of the Indian Penal Code, 1860, _(‘IPC’, for short)._ B.A.No.11403 of 2023 -:3:- 3. The concise case of the prosecution is that: Between 1.10 a.m and 4.12 a.m on 20.10.2023, the first accused in order to vacate the defacto complainant from the shop room owned by him poured petrol on the carpet and set fire to the shop. The shop room and the materials were completely gutted in the fire and the defacto complainant sustained a loss of Rs.2/- Crore. Thus, the accused have committed the above offences. 4. Heard; Sri. Binu V.V, the learned counsel appearing for the petitioner, Smt.Seetha.S, the learned Senior Public Prosecutor appearing for the respondent and Sri.Sivaram, the learned counsel appearing for the defacto complainant/intervener. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations B.A.No.11403 of 2023 -:4:- levelled against him. There is no material to implicate the petitioner in the crime. The petitioner 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 opposed the application. She submitted that the shop was leased to the defacto complainant, where he was running his business. In order to illegally vacate the defacto complainant from the shop room, the petitioner and the second accused set fire to the shop room. The CCTV footages clearly reveal that the petitioner was at the scene of the incident. The investigation is in progress and the recovery is to be effected. If the petitioner is let off on bail, it would hamper with the investigation and also send a wrong B.A.No.11403 of 2023 -:5:- message to the society. Hence, the application may be dismissed. 7. The learned counsel appearing for the defacto complainant also opposed the application and reiterated the submissions of the learned Public Prosecutor. 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. B.A.No.11403 of 2023 -: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; (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, 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 B.A.No.11403 of 2023 -:7:- 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 B.A.No.11403 of 2023 -:8:- that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. After bestowing my anxious consideration to the materials placed on record, the rival submission made across the Bar , taking into account the nature, gravity, and seriousness of the offence alleged against the petitioner, that the investigation in the case is at its nascent stage, that the custodial interrogation of the petitioner is necessary and that the CCTV footages prima facie show that the petitioner was at the scene of occurrence, I am of the definite view that the petitioner is not entitled 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. B.A.No.11403 of 2023 -:9:- 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 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** Sks/ 22.1.2024 B.A.No.11403 of 2023 ## -:10:- ## **`APPENDIX OF BAIL APPL. 11403/2023`** ``` PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE FIR IN CRIME NO. 2437/2023 OF PALARIVATTOM POLICE Annexure A2TRUE COPY OF THE ORDER IN CRL.M.C NO. 3190/2023 ON THE FILES OF THE SESSIONS COURT, ERNAKULAM, DATED 27/11/2023 ```