High Court of KeralaSingle Judge2008-03-07Anticipatory bail granted

Sulan Sukumaran v. State of Kerala

Case / Petition Number:Bail Appl. No. 1396 of 2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
Judgment Date: 2008-03-07
Court Decision / Holding: The petition is allowed. Directions under Section 438 Cr.P.C are issued in favor of the petitioner for anticipatory bail. The petitioner shall appear before the Magistrate with the following terms: (i) bond of Rs. 25,000 with two solvent sureties; (ii) to be available for interrogation by the investigating officer as directed by the officer in writing; (iii) if the petitioner fails to appear as directed, the directions will stand revoked and police may arrest him; (iv) if arrested prior to 17/03/2008, release on a bond for Rs. 25,000 without sureties, with appearance before the Magistrate on 17/03/2008."
Final Disposition: Anticipatory bail granted

Parties to the Case

Appellants / Petitioners

Sulan Sukumaran

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Ajith Murali

Counsels for Respondents

• S. U. Nazer

Case Synopsis & Summary

This is a Kerala High Court anticipatory bail application under Section 438 Cr.P.C filed by Sulan Sukumaran, the second accused in a Kerala Abkari Act case. A contraband liquor seizure—10 litres of arrack—took place at the residence occupied by the first accused, who is Sulan Sukumaran’s wife. The petitioner contends that he was employed and permanently based in Mumbai at the relevant time; following estrangement from his wife, he resided there and asserts he bore no responsibility for acts allegedly carried on by his wife at her residence, which he denies frequented by him. The investigating agency claims the investigation is complete and a final report has been filed, recommending surrender before the Magistrate for regular bail, rather than anticipatory bail. Counsel for the petitioner relies on Bharat Chaudhary v. State of Bihar (AIR 2003 SC 4662), arguing that, in peculiarly circumstantial facts, one may grant anticipatory bail even if arrest is in the process of execution, particularly when there is no direct evidence placing the petitioner at the scene or showing his joint possession. The Public Prosecutor is asked to articulate any specific circumstances indicating joint possession. He concedes that, apart from the wife’s statements implicating the petitioner, there is no other evidence to ground guilt. The court, after careful consideration, decides to issue directions under Section 438 Cr.P.C to ensure proper investigation and ultimately grants anticipatory bail with specified conditions.

Provisions of Law Cited

Kerala Abkari ActSection 438 Cr.P.C

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that he was employed and permanently based in Mumbai at the relevant time; after estrangement from his wife he resided there and had no responsibility for activities alleged to be carried on by the wife at her residence; he maintains he was not present at the time of the apprehended recovery; he relies on Bharat Chaudhary v. State of Bihar (AIR 2003 SC 4662) to contend that anticipatory bail is possible in peculiar facts even if arrest has begun under process; there is no evidence of his presence on the date of incident or joint possession with his wife; the prosecution’s case rests on scant evidence and statements by the wife implicating him, with no other evidence to prove guilt. The remedy sought is anticipatory bail so as to enable proper investigation and cooperation with authorities while avoiding premature arrest.

Contentions of Respondents

The State argues that the investigation is already complete and a final report (CP No.232/07) has been filed; the petitioner may be directed to surrender and seek regular bail; while accepting Bharat Chaudhary as a reference, the prosecution stresses that there is no concrete evidence showing the petitioner’s presence or joint possession at the relevant premises; the only material linking him is the wife’s statements; the court is urged to ensure protection of the investigation and consider the risk of flight or interference with proceedings; ultimately the State does not contend that the petitioner’s liberty should be curtailed without basis, but stresses caution given the lack of direct evidence.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Bharat Chaudhary v. State of Bihar	AIR 2003 SC 4662	Mentioned Only	Cited by the petitioner's counsel as a precedent for granting anticipatory bail in peculiar factual situations; the court does not rely on it as a binding basis for its own ruling but notes the reference during argument.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 Bail Appl..No. 1396 of 2008() ----------------------------CRIME NO.673/2007 OF PADALAM POLICE STATION :PETITIONER/ACCUSED NO.2 ----------------------------- SULAN SUKUMARAN, AGED 45 YEARS ULHASNAGAR N.P.WARD NO.28, CAMP 4 ULHASNAGAR, MUMBAI. BY ADV. SRI.AJITH MURALI RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** ## **----------------------** B.A.No.1396 of 2008 ---------------------------------------Dated this the 7[th] day of March 2008 ## **O R D E R** Application for anticipatory bail. The petitioner is the second accused. He faces allegations in a crime registered under the Kerala Abkari Act. The crux of the allegations against the petitioner is that contraband liquor - 10 litres of arrack was allegedly seized from the premises occupied by the first accused, who is the wife of the petitioner herein. 2. The petitioner has a case that he is employed and residing permanently in Mumbai and at the relevant time - the detection was made on 12/11/2007 - he, consequent to estrangement with his wife, was residing at Mumbai and worked there. The petitioner has no responsibility whatsoever for whatever activities his estranged wife is carrying on in her present residence which is not frequented by the petitioner at all. In these circumstances, it is prayed that anticipatory bail may be granted to the petitioner. 3. The learned Public Prosecutor submits that the investigation is already complete. Final report has already been filed arraying the petitioner as well as his wife as accused 2 and 1 respectively. C.P.No.232/07 has been registered before the B.A.No.1396/08 2 learned Magistrate. The petitioner may be directed to surrender before the learned Magistrate and seek regular bail, submits the learned Public Prosecutor. 2. The learned counsel for the petitioner relying on the decision in Bharat Chaudhary v. State of Bihar [AIR 2003 SC 4662] contends that notwithstanding the fact that the apprehending arrest was in execution of the process issued by the court, the petitioner is entitled in the peculiar facts and circumstances of this case for grant of anticipatory bail. The learned counsel for the petitioner submits that the prosecution does not even have an allegation that the petitioner was present on the date of the incident or any time in the recent past at the house of his wife as to justify the allegation that the wife was keeping possession of the articles jointly with him and with the conscious culpable mental state of the petitioner. 3. The learned Public Prosecutor was requested to explain to this court the specific circumstances, if any, which can indicate that the petitioner had constructive joint possession over the articles kept in the house and also to submit whether there is anything to show that on the relevant day or any anterior recent past the petitioner was present at the place where the recovery was made. B.A.No.1396/08 3 4. The learned Public Prosecutor fairly submits that except the allegation that the house is occupied by the petitioner's wife and certain statements have been made by her implicating the petitioner, there is no other evidence whatsoever to drive home the guilt of the petitioner. 5. Having rendered my anxious consideration to all the relevant inputs, I am persuaded to agree that directions under Section 438 Cr.P.C can be issued in favour of the petitioner. Appropriate directions for a proper completion of the investigation can be issued in the interests of a proper investigation. 6. In the result, this petition is allowed. Following directions are issued under Section 438 Cr.P.C in favour of the petitioner. i) Petitioner shall on or before 17/3/2008 appear before the learned Magistrate having jurisdiction. The learned Magistrate shall release the petitioner on bail on condition that: (a) He executes a bond for Rs.25,000/-(Rupees twenty five thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (b) He shall make himself available for interrogation before the investigating officer as and when directed by the B.A.No.1396/08 4 investigating officer in writing to do so. (iii) If the petitioner does not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioner and deal with him in accordance with law, as if these directions were not issued at all. (iv) If he were arrested prior to 17/03/2008, he shall be released from custody on his executing a bond for Rs.25,000/(Rupees twenty five thousand only) without any sureties, undertaking to appear before the learned Magistrate on 17/03/2008. ## **(R.BASANT, JUDGE)** jsr B.A.No.1396/08 5 B.A.No.1396/08 6 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF MAY2007