Rajesh.R v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 3844 OF 2024` ``` CRIME NO.246/2024 OF VALAPPATANAM POLICE STATION, KANNUR ``` ## `PETITIONER:` ``` RAJESH.R AGED 39 YEARS S/O.RAMACHANDRAN, EZHUTHANI HOUSE, MEENKUNNU, AZHEEKODE SOUTH.P.O, KANNUR, PIN – 670009 ``` ``` BY ADVS.M.P.PRIYESHKUMAR SHANAVAS NALAKATH RANDUPURAYIL ``` ``` RESPONDENT: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3844/2024_ _-:2:-_ _Dated this the 4[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 accused in Crime No.246/2024 of the Valapattanam Police Station, Kannur, registered against him for allegedly committing the offences punishable under Sections 5(a) and 5(b) of the Explosive Substances Act, 1884 and Sections 9(B)(1)(a) & 9(B)(1) of the Indian Explosive Act, 2008. 3. The essence of the prosecution case is that: on 05.04.2024, at around 14.30 hours, the Investigating Officer on getting information that the petitioner was engaged in making and selling gun powder in his house, conducted a search and seized sulfar, nitrates, _B.A.No.3844/2024_ ## _-:3:-_ charcoal and sack thread from there. Thus, the accused has committed the above offences. 4. Heard; Sri. M.P. Priyeshkumar, the learned counsel appearing for the petitioner and Smt. Seetha S, the learned Senior Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has no connection with the crime. The Investigating Officer has deliberately incorporated the said offences to harass the petitioner. The petitioner's custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to substantiate the involvement _B.A.No.3844/2024_ ## _-:4:-_ of the petitioner in the above crime. The Investigating Officer has seized 02 kilograms of gun powder, 2.7 kilograms of sulfar powder, 1.1 kilograms of nitrates having white colour and 900 grams of charcoal along with mix powder of 09 kilograms and carbon of 4.2 kilograms from the house of the petitioner. The 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 the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that, on getting secret information, the Investigating Officer conducted a search in the petitioner's house and found explosive substances in his residence. It is the case of the petitioner that the house does not belong to the petitioner. 8. Even though the petitioner moved a similar _B.A.No.3844/2024_ ## _-:5:-_ application before the Court of Session, Thalassery, by filing Crl.M.C. No.714/2024, the learned Sessions Judge, by Annexure-1 order, dismissed the application on finding that the petitioner's custodial interrogation is necessary and prima-facie there are sufficient materials to presume that the petitioner is involved in the case. 9. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: “8. It is thus obvious from the catena of decisions dealing 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 _B.A.No.3844/2024_ _-:6:-_ 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” ## 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 _B.A.No.3844/2024_ ## _-:7:-_ 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 considering the fact that the explosive substances were allegedly seized from the premises belonging to the petitioner, the nature, gravity, and seriousness of the accusations leveled against the petitioner, that the petitioner’s custodial interrogation is necessary, and recovery is to be effected, I am convinced that the petitioner has not made out any exceptional ground to invoke the _B.A.No.3844/2024_ _-:8:-_ extraordinary jurisdiction of this Court under Section 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. Sd/- ## **C.S.DIAS,JUDGE** DST/04.06.24 //True copy// P.A. To Judge