Shibu, Rinil A and Robin v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 1961 OF 2024 ``` ``` CRIME NO.91/2024 OF VIZHINJAM POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONERS/ACCUSED5 TO 7:`** ``` 1SHIBU, AGED 42 YEARS S/O SOLOMAN, MOOLAVILA COLONY, KOTTAPPURAM P.O, VIZHINJAM, THIRUVANANTHAPURAM, PIN - 695521 ``` ``` 2RINIL A, AGED 32 YEARS S/O ARUL DASAN,CHARUVILA COLONY, KOTTAPPURAM P.O,VIZHINJAM, THIRUVANANTHAPURAM, PIN - 695521 ``` ``` 3ROBIN, AGED 30 YEARS S/O MICHEAL, THUPPASHIKKUDI PURAYIDOM, KOTTAPPURAM P.O,VIZHINJAM,THIRUVANANTHAPURAM, PIN - 695521 ``` ## **`BY ADV LATHEESH SEBASTIAN`** ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` PUBLIC PROSECUTOR SMT. SHYNIMOL V.O. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. NO.1961 of 2024** ``` 2 ``` ## **Dated this the 26[th] day of March, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail. 2.The petitioners are the accused in Crime No.91/2024 of the Vizhinjam Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offences punishable under Sections 461 and 380 of the Indian Penal Code. 3. The essence of the prosecution case is that; on 18.1.2024, at around 1 hours, the accused 1 to 10 had committed theft of 57 plastic cans containing 35 litres of Diesel from the barges, tugs and marine equipments ``` 3 ``` ## **B.A. NO.1961 of 2024** installed in the port areas of Vizhinjam International Sea Port, Thiruvananthapuram by using fishing boats. Thus, the accused have committed the above offence. 4. Heard Sri. Latheesh Sebastian, learned counsel appearing for the petitioners and Smt.Shynimol V.O., the learned Public Prosecutor. 5. Learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. They have been falsely implicated in the crime. There is no specific overt act alleged against the petitioners. In any given case, the petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners are entitled for an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report. He has, inter alia, stated that the ## **B.A. NO.1961 of 2024** ## **`4`** accused 8,9 and 10 had stolen the diesel from the Vizhinjam International Sea Port and handed over the same to the accused 1 to 7, who in turn sold the diesel to the fishermen. The accused 1 to 3 have already been arrested. The incriminating materials would prima facie show the petitioners’ involvement in the crime. The petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. On an evaluation of the materials on record, it can be gathered that the accusation against the accused 1 to 10 is that the accused 8 to 10 stole the diesel from the port area and gave it to accused 1 to 7, who in turn sold it to the local fishermen. 8. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble **B.A. NO.1961 of 2024** ``` 5 ``` ## 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 respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood **B.A. NO.1961 of 2024** ``` 6 ``` 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. **B.A. NO.1961 of 2024** ``` 7 ``` **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. 9. 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. 10. On an anxious consideration of the facts, the ``` 8 ``` ## **B.A. NO.1961 of 2024** rival submissions made across the Bar, and the materials placed on record,, especially on comprehending the nature, seriousness and gravity of the accusation levelled against the petitioners, the incriminating materials shows the petitioners’ prima facie involvement in the crime, the petitioners’ custodial interrogation is necessary and recovery is to be effected, I am satisfied that the petitioners have not made out any convincing 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 of pre-arrest bail. Resultantly, the bail application is dismissed Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an ``` 9 ``` ## **B.A. NO.1961 of 2024** application for bail, the jurisdictional Court shall consider the bail application on its merits and in accordance with law. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. **SD/-** **C.S.DIAS, JUDGE** ``` rmm/26/3/2024 ```