SURESH v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 1459 OF 2024`** ``` CRIME NO.99/2024 OF KUTHIYATHODE POLICE STATION, ALAPPUZHA ``` ## **`PETITIONER/ACCUSED:`** ``` SURESH AGED 48 YEARS S/O PUSHKARAN KOTHAKATTUVELIYIL HOUSE C.M.C 24 CHERTHALA., PIN - 688524 ``` ``` BY ADVS. MANU HARSHAKUMAR ADARSH S. MARY ANN SAJI GOVIND CHANDRABHANU ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV SRI. C. S. HRITHWIK – SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.1459 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 1459 OF 2024 ------------------------------------------------------Dated this the 18[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 sole accused in Crime No.99/2024 of the Kuthiyathode Police Station, Alappuzha, which is registered against him for allegedly committing the offences punishable under Sections 406 and 420 of the Indian Penal Code. 3. The essence of the prosecution case is that: while the accused was working as a distribution agent for Preethy Bharat Gas Agency, during the period from 02.08.2021 and 13.08.2023, he with an intention to ``` 3 ``` ``` BAIL APPL. NO.1459 OF 2024 ``` make unlawful gain for himself and unlawful loss to the defacto complainant, had misappropriated 371 filled commercial gas cylinders from the gas agency and has misappropriated Rs.40,74,977/-. Thus, the accused has committed the above offences. 4. Heard; Sri. Manu Harshakumar the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime. It is out of the animosity of the defacto complainant that the above case has been registered. The petitioner was only working as a manual laborer, on contract basis, with the defacto complainant. It is only because the petitioner had left the services of the defacto ``` 4 ``` ``` BAIL APPL. NO.1459 OF 2024 ``` complainant and joined another gas agency that the present crime has been registered. By no stretch of imagination can be offences under Sections 406 and 420 IPC be attracted. In any given case, 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 submitted that the petitioner has committed a grave economic offence. While he was in service of the defacto complainant, he has misappropriated the money that was due from the customers and also he has misappropriated 371 commercial gas cylinders. The petitioner’s custodial interrogation is necessary and recovery is to be effected for a proper and full investigation of the crime. If the petitioner is granted an order of prearrest bail, it would hamper with the investigation. ``` 5 ``` ``` BAIL APPL. NO.1459 OF 2024 ``` Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that; while he was working with the defacto complainant, he misappropriated an amount of Rs.40,74,997/- and 371 LPG gas cylinders. 8. The petitioner had moved a similar application before the Court of Session, Alappuzha by filing Crl.M.P. No.3897/2023. By Annexure I order, the learned Sessions Judge dismissed the application on finding that the petitioner’s custodial interrogation is necessary and recovery is to be effected. 9. 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 ``` 6 ``` ``` BAIL APPL. NO.1459 OF 2024 ``` 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; (v) Where the accusations have been made only with the object of injuring or ``` 7 ``` ``` BAIL APPL. NO.1459 OF 2024 ``` 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. ``` 8 ``` ``` BAIL APPL. NO.1459 OF 2024 ``` **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. ## 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 accusation levelled against the applicant is only to enrope him in the ``` 9 ``` ``` BAIL APPL. NO.1459 OF 2024 ``` crime and would misuse his liberty. 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar on and the materials placed on record, especially comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, 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 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. Resultantly, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within ten days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court ``` 10 ``` ``` BAIL APPL. NO.1459 OF 2024 ``` on the date of surrender itself. Then, if the petitioner moves application for bail, the jurisdictional Court shall 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 ``` 11 ``` ## **`BAIL APPL. NO.1459 OF 2024`** ## **`APPENDIX OF BAIL APPL. 1459/2024`** ``` PETITIONER’S ANNEXURES Annexure ITRUE COPY OF BAIL ORDER IN CRLMP NO 3897/2023 DATED 18.08.2023 Annexure IITRUE COPY OF BAIL ORDER IN CRL.MP NO 672/2024 DATED 19.02.2024 ``` ## **`RESPONDENT’S ANNEXURES: NIL`**