Nishad K.A. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945** **BAIL APPL. NO. 10469 OF 2022** **CRIME NO.83/2022 OF KODAKARA POLICE STATION, THRISSUR** **AGAINST THE ORDER/JUDGMENT SC 618/2022 OF DISTRICT COURT & SESSIONS** ## **COURT,THRISSUR** ## **PETITIONER/ACCUSED NO.4:** **NISHAD.K.A. AGED 39 YEARS S/O ASHARAF, KARIYAPILLI HOUSE, KODASSERI P.O, NAYARANAGADI THRISSUR, PIN - 680684** **BY ADVS. T.R.KRISHNADAS RAHUL R.PAI** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA , ERNAKULAM,, PIN - 682031** **2 STATION HOUSE OFFICER KODAKARA POLICE STATION THRISSUR DISTRICT,, PIN - 680684** **BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28)** ## **OTHER PRESENT:** **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.01.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.10469 OF 2022** **2** ## **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 fourth accused in crime No.83/2022 of the Kodakara Police Station, Thrissur, registered against the accused (4 in number) for allegedly committing the offences punishable under Sections 20(b) (ii)C, 25, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act). 3. The gist of the prosecution case is that: around 7.45 a.m on 31.01.2022, the police party detected the accused 1 to 3 in possession and transporting 400 Kg of dry ganja in a lorry bearing Reg.No.KL-72-8224. The said accused has confessed that it was the fourth accused who financed for the purchase of the contraband article. Thus, the accused have committed the offences. 4. Heard; Sri.T.R.Krishnadas, the learned counsel **BAIL APPL.NO.10469 OF 2022** **3** appearing for the petitioner and Sri.C.K.Suresh, the learned Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him and he is falsely implicated in the crime. There is no material to implicate the petitioner as an accused in the case. The petitioner is a law abiding citizen. The petitioner's custodial interrogation is not necessary. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor vehemently opposed the application. He contended that the petitioner has been absconding. The accused 1 to 3 had surrendered before the investigating officer and they were arrested. The investigation as against them is complete and the case is now numbered as S.C.618/2022 and is pending before the Sessions Court, Thrissur. The petitioner may not be granted an order of pre-arrest bail, especially since he is absconding. **BAIL APPL.NO.10469 OF 2022** **4** The petitioner is a person with criminal antecedents. The petitioner's custodial interrogation is necessary. Therefore, the bail application is to be dismissed. 7. 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 **BAIL APPL.NO.10469 OF 2022** **5** 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 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 **BAIL APPL.NO.10469 OF 2022** **6** 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. 8. 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. 9. After bestowing my anxious consideration to the materials placed on record, the rival submissions made across the bar, taking into account the nature, gravity and seriousness of the offence alleged against the petitioner and **BAIL APPL.NO.10469 OF 2022** **7** fact that the petitioner is a person with criminal antecedents that the contraband that is involved is of a commercial quantity, that the other accused had surrendered themselves and the investigation was complete as against them, and that the petitioner's custodial interrogation is necessary, I am of the definite view that the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court under Section 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. 10. 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 **BAIL APPL.NO.10469 OF 2022** **8** 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** **shg**