Subin and Bineesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945** **BAIL APPL. NO. 992 OF 2024** ## **CRIME NO.1080/2023 OF Vadakara Police Station, Kozhikode** ## **PETITIONER/S:** 1 SUBIN AGED 36 YEARS S/O NANU,KUNNATH, AYANCHERI, KOZHIKODE, PIN - 673541 2 BINEESH V.T AGED 39 YEARS S/O BALAN, VALIYA THAYYIL, AROOR POST, PURAMERI, KOZHIKODE., PIN - 673507 BY ADVS. M.P.PRIYESHKUMAR MUSTHAFA.P.P ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER VADAKARA POLICE STATION, KOZHIKODE, PIN - 673101 ## **OTHER PRESENT:** SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 992 OF 2024 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 petitioners are the accused 2 and 3 in Crime No.1080/2023 of the Vatakara Police Station, Kozhikode, registered against the accused (three in number) for allegedly committing the offence punishable under Section 379 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The crux of the prosecution case is that: on 26.09.2023 and 27.09.2023 a JCB bearing No.KL.56.S.6948, which was seized under Section 19 of the Kerala Conservation of Paddy and Wetland Act by the Vatakara Deputy Tahsildar and kept at the old Taluk building, was stolen by the accused. Thus, the accused have committed the above offences. 4. Heard; Sri. Priyesh Kumar M.P., the learned counsel appearing for the petitioners and Smt.Seetha S., BAIL APPL. NO. 992 OF 2024 3 the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have no complicity in the crime. They have been falsely implicated in the case. It was the 1[st] accused who had committed the crime and he has already been arrested and released on bail. The recovery has been effected by seizing the vehicle. The petitioners' custodial interrogation is not necessary. The petitioners are willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that the accused 1 to 3 had in furtherance of their common intention stolen the vehicle from the premises of the Taluk office. The petitioners' custodial interrogation is necessary. The investigation in the case is only at the preliminary stage. If the petitioners are let off on bail, it would hamper with BAIL APPL. NO. 992 OF 2024 4 the investigation. 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 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 BAIL APPL. NO. 992 OF 2024 5 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. **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. BAIL APPL. NO. 992 OF 2024 6 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 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. 9. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and on comprehending the nature, seriousness and gravity of the offence alleged against the petitioners, that their custodial interrogation is necessary and further that the investigation is only at the nascent stage, I am of the definite view that the petitioners have not made out any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the BAIL APPL. NO. 992 OF 2024 7 Code. Therefore, 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** Rkc/15.02.24 BAIL APPL. NO. 992 OF 2024 8 ## **APPENDIX OF BAIL APPL. 992/2024** PETITIONER ANNEXURES Annexure 1 A CERTIFIED COPY OF THE FIR ALONG WITH THE COMPLAINT FILED BY THE DEFACTOCOMPLAINANT