Shiju Chacko @ Manoj v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 594 OF 2023`** ``` CRIME NO.1547/2022 OF MANIMALA POLICE STATION, KOTTAYAM ``` ## **`PETITIONER/ACCUSED NO.2:`** ``` SHIJU CHACKO @MANOJ, AGED 42 YEARS ENJIKALAYIL PARAPPURAYIDAM VEEDU, VALIAKAVU .P.O, PAZHAVANGADI PANCHAYATH, RANNI TALUK, PATHANAMTHITTA DISTRICT, PIN - 689675 BY ADVS. V.SETHUNATH V.R.MANORANJAN (MUVATTUPUZHA) SREEGANESH U. OBEID ABDUL MAJEED ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031`** - **`2 STATION HOUSE OFFICER, MANIMALA POLICE STATION, MANIMALA.P.O, KOTTAYAM DISTRICT, PIN - 686543`** ``` BY ADV ``` - **`SMT. SEETHA S. - SENIOR PUBLIC PROSECUTOR`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.594 OF 2023 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 594 OF 2023** **------------------------------------------------------Dated this the 4[th] day of March, 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 Crime No.1547/2022 of the Manimala Police Station, Kottayam registered against the accused (two in number) for allegedly committing the offence punishable under Section 379 of the Indian Penal Code. 3. The crux of the prosecution case is that: on the intervening night of 29.12.2022 and 30.12.2022, the telephone cables belonging to the BSNL, having a ``` 3 ``` ## **`BAIL APPL. NO.594 OF 2023`** value of Rs.75,000/- (Rupees seventy five thousand) were stolen by unidentifiable persons. On the basis of the complaint lodged by the BSNL, the Investigating Officer registered the case and have found that the accused have committed the above offence. 4. Heard; Sri. V. Sethunath, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to link the petitioner with the above crime. A reading of Annexure A1 FIR would substantiate that, it was the first accused who was committed the offence. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. ``` 4 ``` ## **`BAIL APPL. NO.594 OF 2023`** 6. The learned Public Prosecutor seriously opposed the application. She contended that the petitioner along with the first accused had travelled on a motor cycle and had gone to the scene of occurrence and stole the cables. There are incriminating materials including, ocular witnesses to substantiate the involvement of the petitioner. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of prearrest bail, it would hamper with the full and proper investigation of the crime. 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 ``` 5 ``` ``` BAIL APPL. NO.594 OF 2023 ``` 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 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; ``` 6 ``` ``` BAIL APPL. NO.594 OF 2023 ``` (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 ``` 7 ``` ``` BAIL APPL. NO.594 OF 2023 ``` 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 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 ``` 8 ``` ## **`BAIL APPL. NO.594 OF 2023`** against the applicant is only to enrope him in the crime and would misuse his liberty. 9. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity and seriousness of the accusations, and that there are incriminating materials to establish the involvement of the petitioner in the above crime, that the petitioner’s custodial interrogation is necessary and the recovery is to be effected, I am convinced that the petitioner has not made out 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 of pre-arrest bail. Consequently, the bail application is dismissed. ``` 9 ``` ## **`BAIL APPL. NO.594 OF 2023`** 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. 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 ``` 10 ``` ## **`BAIL APPL. NO.594 OF 2023`** ## **`APPENDIX OF BAIL APPL. 594/2023`** ``` PETITIONER’S ANNEXURES AnnexureA1THE TRUE COPY OF THE F.I.R IN CRIME NO. 1547/ 2022 OF MANIMALA POLICE STATION DATED 31-12-2022 ``` ``` RESPONDENT’S ANNEXURES: NIL ```