Kishor v. State of Kerala

1 BA No.1077 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 BAIL APPL. NO. 1077 OF 2024 ``` ``` CRIME NO.114/2023 OF Karunagappally Excise Range Office, Kollam PETITIONER/S: ``` ``` KISHOR, S/O MURALI, KISHOR BHAVAN, MARUTHOOR KULANGARA,ALUMKADAVU, KARUNAGAPALLY, PIN - 690518 BY ADVS. R.SUNIL KUMAR A.SALINI LAL ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` OTHER PRESENT: ``` ``` Sr PP Smt Neema T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1077 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.1077 of 2024** ## **-----------------------------------** ## **Dated this the 13[th] day of March, 2024** ## **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 third accused in Crime No.114/2023 of the Excise Range Office, Karunagappally, registered against the accused (four in number), for allegedly committing the offences punishable under Sections 55(a), 56(b) and 67(B) of the Kerala Abkari Act 1 of 1077. 3. The crux of the prosecution case is that; the third accused is a licensee of toddy shop Nos.TS No.32/2022-23 and T.S No.26/22-23. The excise party on conducting a search seized 210 litres of spirit from the rented premises of accused 1 and 4, of whom the first accused was an employee of the 3 BA No.1077 of 2024 third accused. The spirit was stored for allegedly mixing it with toddy to enhance its vigour. Thus, the accused have committed the above offences. 4. Heard Sri. R.Sunil Kumar, the learned counsel appearing for the petitioner and Smt.Neema.T.V the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. In fact, the petitioner is a licensee of two toddy shops. The petitioner is unaware of the alleged spirt. In any given case, 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 seriously opposed the application. She submitted that the contraband article was seized from the rented premises of the accused 1 and 4, of whom the first accused is an employee of the petitioner. The 4 BA No.1077 of 2024 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 sabotage the investigation. Hence, the application may be dismissed. 7. The petitioner had moved two applications for similar relief before the Court of Session, Kollam, by filing Crl.M.C Nos.1079/2023 and 127/2024. The learned Sessions Judge, by Annexures A1 and A2, on prima facie finding that the petitioner’s complicity in the crime and also the rigour under Sec.41A of the Act, has dismissed both the applications. 8. The prosecution allegation is that the accused in furtherance of their common intention had stored contraband article for the purpose of enhancing vigour of the toddy, which has been stored by the accused 1 and 4. 9. Section 41 A of the Abkari Act reads as follows:- 5 BA No.1077 of 2024 [41A. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of three years or more under this Act shall be released on bail or on his own bond unless- (i) the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (Central Act, 2 of 1994) or any other law for the time being in force on granting of bail]. 10. The above provision explicitly postulates that if the Public Prosecutor opposes an application, then this Court has to be satisfied that there are reasonable grounds to believe that the accused is not guilty of the offence alleged against him and that he is not likely to commit any offence while on bail. 11. On a consideration of the accusations levelled against the petitioner, especially the fact that the petitioner is a licensee of two toddy shops and that the contraband article was 6 BA No.1077 of 2024 seized from the employee of the petitioner, I am prima facie convinced of the allegations attributed against the petitioner. 12. 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. **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; 7 BA No.1077 of 2024 (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 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. ## 13. 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 8 BA No.1077 of 2024 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. 14. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submission made across the Bar and the findings rendered above and by the Court of Session, Kollam in Annexures A1 and A2, and on comprehending the seriousness, gravity and accusations levelled against the petitioner, the investigation in the case is at its nascent stage, the custodial interrogation of the petitioner is necessary and that the recovery is to be effected, I am not convinced that the petitioner has diluted the rigour under Section 41A of the Abkari Act, to hold that he has not 9 BA No.1077 of 2024 committed the offences and is not likely to commit the offences in future. The petitioner has not made out exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 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. 15. Nonetheless, I direct that, if the petitioner surrender 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 move 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/- sks/13.3.2024 **C.S.DIAS, JUDGE**