Sumesh v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2174 OF 2024 ``` ``` CRIME NO.189/2024 OF Ochira Police Station, Kollam ``` ## `PETITIONER/ACCUSED:` ``` SUMESH, AGED 28 YEARS S/O.SUDERSAN, SUMESH BHAVANAM, THOTTUMUGHAM. P.O, MYNAGAPPALLY VILLAGE, MYNAGAPPALLY SOUTH MURI, KUNNATHOOR THALUK, KOLLAM DISTRICT., PIN - 690519 BY ADV P.V.DILEEP ``` ## `RESPONDENT/COMPLAINANT:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2THE STATION HOUSE OFFICER OACHIRA POLICE STATION, OACHIRA .P.O, KOLLAM DISTRICT., PIN - 690526 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No.2174/2024 ## **-: 2 :-** ## **C. S. DIAS, J.** = = = = = = = = = = = = = = = = = = = = **B.A No.2174 of 2024** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of March, 2024 ## **ORDER** The application is filed under Section 438 of the Code of Criminal Procedure [for shot, ‘the Code’], for an order of pre-arrest bail. The petitioner is the sole accused in Crime No.189/2024 of the Ochira Police Station, Kollam registered against him for allegedly committing offences punishable under Sections 353 and 379 of the Indian Penal Code. 2. The essence of the prosecution allegation is that, on 14.02.2024 at around 18.30 hrs, the defacto complainant/Village Officer, Ochira Village had visited the property of one Remya in Re-survey Nos.137/9-5, ## B.A No.2174/2024 **-: 3 :-** 137/9-6 on learning that ordinary earth was being unloaded from the tipper lorry bearing No.KL-35K-3272. The Village Officer took the vehicle into custody and directed the accused to drive the lorry to the Village Office. On the way, the accused stopped the vehicle on the road and ran away from the scene. Subsequently, when the Village Officer left the spot, the accused went and took away the lorry. Thus, the accused has committed the above offences. 3. Heard Sri.Dileep P.V., the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Government Pleader appearing for the respondent. 4. The learned counsel appearing for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of ## B.A No.2174/2024 **-: 4 :-** Annexure-I, FIR would substantiate that the offences under Sections 353 and 379 IPC will not be attracted against the petitioner. Moreover, Annexures-2 and 3 would establish that the property is dry land and not wet land as alleged by the prosecution. The vehicle had a valid pass as evidenced by Annexure-4. By Annexure-5 judgment, this Court had permitted the sand to be unloaded in the property in question. As per Annexure-6 document, the jurisdictional magistrate had released the vehicle to its owner under Section 451 Cr.P.C. Therefore, the petitioner has not committed any of the offences alleged by the prosecution. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. The petitioner is willing to co-operate with the investigation and abide by any stringent conditions that may be imposed by this Court. Hence, the application may be allowed. ## B.A No.2174/2024 ## **-: 5 :-** 5. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner, in contravention of the provisions of the law, unloaded ordinary earth in the property in question. On noticing the illegal act, the defacto complainant had seized the vehicle and directed the accused to drive it to the Village Office. However, the accused stopped the vehicle on the road and left the vehicle abandoned. Subsequently, after the defacto complainant left the spot, the accused robbed the vehicle. Thus the accused has committed the above offences. 6. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to B.A No.2174/2024 ## **-: 6 :-** cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx xxx xxx xxx 24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may B.A No.2174/2024 ## **-: 7 :-** sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx xxx”. ## 7. 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. ## B.A No.2174/2024 ## **-: 8 :-** 8. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially after comprehending the nature, gravity, and seriousness of the accusations leveled against the accused, that the petitioner’s custodial interrogation is necessary, the recovery is to be effected and the investigation is at the nascent stage, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that, this is not a fit case to grant an order of pre-arrest bail. In the result, The pre-arrest bail application of the petitioner is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, B.A No.2174/2024 ## **-: 9 :-** 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, consider the bail application on its merits. If the petitioner do 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** Sbna/ ## B.A No.2174/2024 ## **-: 10 :-** ## `APPENDIX OF BAIL APPL. 2174/2024` ``` PETITIONER ANNEXURES ``` - `Annexure 1` ``` THE TRUE COPY OF THE F.I.R IN CRIME NO. 189/2024 OF OACHIRA POLICE STATION IN KOLLAM DISTRICT. ``` - `Annexure-2 THE TRUE COPY OF THE TAX RECEIPT OF THE PROPERTY IN RE-SURVEY NUMBER 137/9-5, 137/9-6, BLOCK NUMBER 3, OACHIRA VILLAGE REMYA AND HER MOTHER BALKESA.` - `Annexure-3 THE TRUE COPY OF THE POSSESSION CERTIFICATE OF THE PROPERTY IN RE-SURVEY NUMBER 137/9-5, 137/9-6, BLOCK NUMBER 3, OACHIRA VILLAGE REMYA AND HER MOTHER BALKESA.` - `Annexure-4 THE TRUE COPY OF THE MINERAL PASS ISSUED TO TRANSPORT EARTH IN PETITIONERS LORRY FROM THE GEOLOGY DEPARTMENT HAVING VALIDITY TILL 16.02.2024.` - `Annexure-5 THE TRUE COPY OF JUDGMENT OF THIS HONORABLE COURT IN W.P© NO. 41999/2023 DATED 08.02.2024 TO THE PROPERTY OWNER FOR LEVELING THE PROPERTY BY FILLING EARTH.` - `Annexure-6 THE TRUE COPY OF ORDER IN C.M.P NO 1011/2024 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KARUNAGAPPALLY.`