Sojimon Kurian v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945** ## **BAIL APPL. NO. 10749 OF 2023** **CRIME NO.709/2023 OF RAMAMANGALAM POLICE STATION** **AGAINST THE ORDER/JUDGMENT CRMC 3297/2023 OF ADDITIONAL DISTRICT COURT &** **SESSIONS COURT - VII, ERNAKULAM / III ADDITIONAL MACT, ERNAKULAM** ## **PETITIONER/ACCUSED:** **SOJIMON KURIAN, AGED 53 YEARS SON OF KURIAN, THEKKUMPURATH HOUSE, KALAMPOOR P.O, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686664** **BY ADVS. PEEYUS A.KOTTAM RAGESH CHAND R.G.** ## **RESPONDENTS/STATE:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 SUB INSPECTOR OF POLICE, RAMAMANGALAM POLICE STATION, RAMANGALAM-THODUPUZHA ROAD, RAMAMANGALAM, KERALA, PIN - 686663** ## **OTHER PRESENT:** **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.10749 OF 2023** **2** ## **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 petitioner is the accused in Crime No.709/2023 of the Ramamangalam Police Station, Ernakulam, registered against him for allegedly committing the offences punishable under Sections 420, 465, 468 and 471 of the Indian Penal Code and Sections 39 & 192 of the Motor Vehicles Act, 1988. 3. The gist of the prosecution case is that: the accused with an intention to cheat the defacto complainant had used the number of his sold vehicle on his present vehicle and operated the said vehicle by making a fabricated number plate. The vehicle originally belonged to the accused and he had sold the vehicle to the defacto complainant. However, due to the use of the forged number plate on the present vehicle of the accused, the defacto complainant had to remit fine for traffic violations. Thus, the accused has committed the above offences. **BAIL APPL.NO.10749 OF 2023** **3** 4. Heard; Sri.Peeyus A. Kottam, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioners submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner has no involvement in the said case. A reading of the FIR would substantiate that the offence alleged against the petitioner will not be attracted. Any rate, the petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He contended that the petitioner had deliberately used the number of the vehicle he had sold to the defacto complainant on his present vehicle, to carry on his illegal mining activities. Therefore, the defacto complainant was mistakenly made an accused and he was **BAIL APPL.NO.10749 OF 2023** **4** made to pay the fine assuming that it was his vehicle that committed the offences. But, actually the accused had deliberately done the act to escape from the clutches of the law. However, in the investigation it was revealed that it was the petitioner who deliberately used the number of his sold vehicle on his present vehicle and committed the crimes. 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 investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that the petitioner after selling his vehicle to the defacto complainant continued to use the same number on his present vehicle and indulged in illegal transportation of sand. Consequently, the fine was imposed on the de-facto complainant. 8. The petitioner had moved a similar application before the Court of Session, Ernakulam by way of Crl.M.C.No.3297/2023. The learned Sessions Judge, after considering the materials placed on record, by Annexure AI **BAIL APPL.NO.10749 OF 2023** **5** order has dismissed the application on the finding that the petitioner's custodial interrogation is necessary and recovery is to be effected. 9. In S **iddharam 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 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 **BAIL APPL.NO.10749 OF 2023** **6** 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. **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. **7** 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 accusations levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 11. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, particularly after going through Annexure A4 Certificate of Registration and the statement given by the defacto complainant, I am prima facie satisfied of the accusations levelled against the petitioner. On comprehending the seriousness, gravity, and nature of the offences alleged against the petitioner, that the petitioner's custodial interrogation is necessary and recovery is to be **BAIL APPL.NO.10749 OF 2023** **8** effected, I am of the definite view 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 of pre-arrest bail. Consequently, the bail application is dismissed. 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 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** **shg**