Mathukutty J @ JAIMON v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 2266 OF 2024` ``` CRIME NO.255/2024 OF NEDUMKANDAM POLICE STATION, IDUKKI ``` ## `PETITIONER:` ``` MATHUKUTTY J @ JAIMON, AGED 47 YEARS S/O T.M JOHN, THACHILETHU (H), PAMPUMPARA P.O, SULTHANKADA, IDUKKI, PIN – 685551 ``` ``` BY ADVS.THOMAS J.ANAKKALLUNKAL ANUPA ANNA JOSE KANDOTH JAYARAMAN S. DHANYA SUNNY ANN MILKA GEORGE ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.2266/2024_ _-:2:-_ _Dated this the 10[th] day of June, 2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the second accused in crime No.255/2024 of the Nedumkandam Police Station, Idukki, registered against the accused (five in number), for allegedly committing the offences punishable under Secs. 286, 308 and 304 read with Section 34 of the Indian Penal Code, 1860 (for short, ‘IPC’) and Sections 5 and 3 of the Explosive Substances Act, 1884. 3. The gravamen of the prosecution allegation is that: on 9.3.2024, at around 18.30 hours, the accused, in furtherance of their common intention, without any licence or permission from the statutory authorities and knowing fully well that the use of explosive _B.A.No.2266/2024_ _-:3:-_ substances could lead to death, the first and second accused, on the instructions of the third accused, used explosive substances to dig a bore well in the property belonging to Continental Estate at Kamakshi Vilasam, which is owned by the 5th accused. But the explosives got detonated, and the first and second accused got seriously injured in the blast. They were initially treated at the Nedumkandam Medical Trust Hospital and were later shifted to the Pala Marsliva Hospital, Kottayam. Yet, the first accused succumbed to the fatal burn injuries. The fourth accused, who was also at the place of occurrence, fled from there . The fifth accused abetted in committing the offences. Thus, the accused have committed the above offences 4. Heard: Sri. Thomas J. Anakkallunkal, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner _B.A.No.2266/2024_ _-:4:-_ submitted that the petitioner is totally innocent of the accusations levelled against him. None of the offences alleged by the prosecution will be attracted against the petitioner. The petitioner was only a worker under the third respondent, the contractor, who carried out the work. In fact, the petitioner also sustained serious injuries and was hospitalalised for a considerable period of time. The petitioner's custodial interrogation is not necessary, and no recovery is to be effected. Moreover, by the order dated 12.04.2024, in B.A.No.2143/2024, this Court has granted an order of pre-arrest bail in favour of the fifth accused, who is the land owner. The petitioner claims parity with the said accused. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner cannot seek parity with the fifth accused because the petitioner, along with accused Nos.1 & 3 _B.A.No.2266/2024_ _-:5:-_ are the persons who brought the explosives in the property and exploded the same. There are specific overt acts alleged against the petitioner. This Court granted the fifth accused an order of pre-arrest bail only because he was the land owner, who was not responsible for bringing the explosives to the property. The petitioner’s custodial interrogation is necessary, and recovery is to be effected. It is only because the petitioner is hospitalised, he could not be apprehended. If the petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 7. On an evaluation of the prosecution case, it can be seen that the fifth accused had entrusted the third accused – an independent contractor – to dig a bore well in the property of the fifth accused. Without the consent and knowledge of the fifth accused, the accused Nos.1 to 3 brought explosives to the property _B.A.No.2266/2024_ _-:6:-_ without any valid licence or permission, and in the course of carrying out the work, the explosives got detonated, and the first accused succumbed to his fatal injuries and the second accused suffered third degree burns. The accused Nos.3 & 4 fled from the scene. 8. The materials on record undoubtedly establishes that there is a specific overt act alleged against the petitioner, who was also responsible for bringing the explosives to the property and detonating it. The petitioner can, by no stretch of imagination, claim parity with the fifth accused, who was granted an order of pre-arrest bail by this Court. 9. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “8. It is thus obvious from the catena of decisions dealing _B.A.No.2266/2024_ _-:7:-_ 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 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” _B.A.No.2266/2024_ _-:8:-_ 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 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 anxious consideration of the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations levelled against the petitioner, and on prima-facie finding the petitioner's involvement in the crime, that _B.A.No.2266/2024_ _-:9:-_ 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 valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that this is not a fit case to grant order of pre-arrest bail. 12. 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, 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 _B.A.No.2266/2024_ _-:10:-_ ## been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** DST/10.06.24 //True copy// P.A. To Judge