Radharkishnan v. State of Kerala (Bail Appl. No. 1014 of 2024)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 1014 OF 2024`** ``` CRIME NO.6/2023 OF POONGODE FOREST STATION OFFICE, ``` ## **`THRISSUR`** ``` AGAINST THE ORDER/JUDGMENT CRMC 1896/2023 OF DISTRICT COURT & SESSIONS COURT,THRISSUR ``` ## **`PETITIONER/2ND ACCUSED:`** ``` RADHARKISHNAN, AGED 66 YEARS S/O. SANKARANARAYANAN, VALERY HOUSE, DESAMANGALAM, THALAPILLY TALUK,THRISSUR, PIN - 679532 BY ADVS. K.SASIKUMAR S.ARAVIND P.S.RAGHUKUMAR ANITHA CHANDRAN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV SRI. C. S. HRITHWIK – SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO. 1014 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 1014 OF 2024 ------------------------------------------------------Dated this the 21[st] 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 second accused in O.R. No.6/2023 of the Poongode Forest Station, Thrissur registered against the accused (two in number) for allegedly committing the offences punishable under Sections 2, (16), (35), 9, 39(1), (d), 50, 51(1), 52 and 57 of the Wild Life (Protection) Act, 1972. 3. The gist of the prosecution case is that: on 12.12.2023 the first accused had drawn a live electricity wire from the pump house of the second accused and ``` 3 ``` ## **`BAIL APPL. NO. 1014 OF 2024`** placed it in the pond in the property owned by the second accused, his wife and his son. The first accused is the employee of the second accused for carrying out agricultural operations. On the ill-fated day, four wild boars, who went to drink water from the pond, got electrocuted. Thus, the accused have committed the above offences. 4. Heard; Sri. K. Sasikumar the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner had leased his property to the first accused. It was the first accused, who drew the live electricity wire for the pump house and placed it in the pond. The petitioner is totally unaware of what had ``` 4 ``` ## **`BAIL APPL. NO. 1014 OF 2024`** transpired. At any rate, the petitioner’s custodial interrogation is not necessary and no recovery has to be effected. Hence, the petitioner is entitled for an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. He contended that the property belongs to the petitioner. The first accused is an employee of the first petitioner. The electricity wire was also drawn for the pump house of the petitioner. The wild boars had got electrocuted in the petitioner’s property. The petitioner’s custodial interrogation is necessary and recovery has 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. On analysing the materials placed on record, prima facie there is nothing on record to establish that the petitioner had leased the property to the first ``` 5 ``` ## **`BAIL APPL. NO. 1014 OF 2024`** accused. Therefore, it is only be inferred that the first accused was a servant/agent of the petitioner. Hence, any act done in the petitioner’s property, the petitioner is vicariously liable for the same. 8. The petitioner had filed Crl.M.C. No.1896/2023 before the Court of Sessions, Thrissur for an identical relief. By Annexure III order, the learned Sessions Judge dismissed the application, cardinally on the finding that the petitioner’s custodial interrogation is inevitable and that the investigation is only at its nascent stage. 9. 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 ``` 6 ``` ``` BAIL APPL. NO. 1014 OF 2024 ``` 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 Satishchandra Ratanlal 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 ``` ``` BAIL APPL. NO. 1014 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 ``` 8 ``` ``` BAIL APPL. NO. 1014 OF 2024 ``` 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. 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 a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. ``` 9 ``` ``` BAIL APPL. NO. 1014 OF 2024 ``` 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, especially taking note of the fact that the property in question belongs to the petitioner and that there is no material to substantiate that the petitioner had leased the property to the first accused, I am prima facie satisfied of the accusations levelled against the petitioners. On comprehending the seriousness, gravity, and nature of the offences alleged against the petitioners, that the petitioner’s custodial interrogation is necessary, that the recovery is to be effected, and that the investigation is in the preliminary stage, I am convinced that the petitioner has not made out any 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 ``` 10 ``` ## **`BAIL APPL. NO. 1014 OF 2024`** of pre-arrest bail. Consequently, the bail application is dismissed. 12. 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 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 ``` 11 ``` ## **`BAIL APPL. NO. 1014 OF 2024`** ## **`APPENDIX OF BAIL APPL. 1014/2024`** ``` PETITIONER’S ANNEXURES Annexure iA TRUE COPY OF THE ORDER DATED 29-01-2024 IN CMP NO. 6075/2023 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, WADAKKANCHERY Annexure IIA TRUE COPY OF THE NEWS ITEM REPORTED IN DESABHIMANI DAILY DATED 14-12-2023 OF THRISSUR EDITION Annexure IIIA CERTIFIED COPY OF THE ORDER DATED 29-01-2024, PASSED BY THE SESSIONS COURT, THRISSUR IN CRL.MC. NO.1896/2023 ``` ``` RESPONDENT’S ANNEXURES: NIL ```