Prakash Kumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ## **`BAIL APPL. NO. 724 OF 2024`** ``` CRIME NO.36/2024 OF SOORANADU POLICE STATION, KOLLAM AGAINST THE ORDER/JUDGMENT CRMC 76/2024 OF DISTRICT COURT & SESSIONS COURT,KOLLAM ``` ## **`PETITIONER/ACCUSED:`** ``` PRAKASH KUMAR AGED 55 YEARS S/O.JANARDHANA KURUP, BABU BHAVANAM, NADUVILE MURI, PORUVAZHY, KOLLAM, PIN - 690520 BY ADVS. K.SIJU ANJANA KANNATH ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER SOORANADU POLICE STATION, KOLLAM RURAL, PIN - 690522 SRI. C. S. HRITHWIK – SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO. 724 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 724 OF 2024 ------------------------------------------------------Dated this the 15[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 sole accused in Crime No.36/2024 of the Sooranadu Police Station, Kollam registered against him for allegedly committing the offences punishable under Section 3 read with Section 7 of the Essential Commodities Act and Section 3(a) of the Explosive Substances Act. 3. The gist of the prosecution case is that on 09.01.2024 at around 12.30 hours, while the accused had stored 141 LPG cylinders meant for public distribution in a shed attached to his house without any ``` 3 ``` ``` BAIL APPL. NO. 724 OF 2024 ``` permission or license, and while transferring the cylinders, one of the cylinders exploded. In the incident, houses in the locality got damaged. Thus, the accused has committed the above offences. 4. Heard; Sri. K. Siju the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik, the learned Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioner submitted that, petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. Even if the allegations in the FIR are taken on its face value, the same will not attract the offences alleged against the petitioner. Petitioner’s custodial interrogation is not necessary. Petitioner is willing to abide any stringent condition that may imposed by this Court. Hence, the application may be allowed. ``` 4 ``` ## **`BAIL APPL. NO. 724 OF 2024`** 6. The learned Public Prosecutor seriously opposed the application. He contended that the petitioner has committed a very heinous crime. The houses in the entire locality were damaged. 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 hamper with the investigation. Hence, the application may 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 ``` 5 ``` ``` BAIL APPL. NO. 724 OF 2024 ``` 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 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 ``` 6 ``` ``` BAIL APPL. NO. 724 OF 2024 ``` 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. ## 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 ``` 7 ``` ## **`BAIL APPL. NO. 724 OF 2024`** 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. On a consideration of the facts, the materials placed on record, the rival submissions made across the Bar and taking into account the nature, gravity and seriousness of the offences alleged against the petitioner, that the investigation in the case is in the preliminary stage, that the petitioner’s custodial interrogation is necessary and the recovery has to be effected, 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. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 ``` 8 ``` ``` BAIL APPL. NO. 724 OF 2024 ``` 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** BR ``` 9 ``` ## **`BAIL APPL. NO. 724 OF 2024`** ## **`APPENDIX OF BAIL APPL. 724/2024`** ``` PETITIONER’S ANNEXURES ``` ``` Annexure A1THE COPY OF FIR IN CRIME NO. 36/2024 OF SOORANADU POLICE STATION, KOLLAM RURAL DATED 09.01.2024 Annexure A2THE COPY OF ORDER DATED 24.01.2024 IN CRL.M.C NO.76/2024 ON THE FILE OF SESSIONS COURT, KOLLAM ``` ``` RESPONDENT’S ANNEXURES: NIL ```