Suresh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946** **BAIL APPL. NO. 3678 OF 2024** **CRIME NO.269/2024 OF Pulpally Police Station, Wayanad AGAINST THE ORDER/JUDGMENT DATED 23.04.2024 IN CRMC NO.285 OF 2024 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **PETITIONER/S:** **SURESH AGED 47 YEARS AGED 47 YEARS, S/O. KRISHNANKUTY, POYKAYIL HOUSE, SASIMALA P.O., PADICHIRA VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN - 673579** **BY ADVS. MATHEW KURIAKOSE K.R.ARUN T.G.SUNIL (PERUMBAVOOR) J.KRISHNAKUMAR (ADOOR) C.N.PRAKASH MONI GEORGE SHAJI P.K.** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** ## **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3678 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 petitioner is an accused in Crime No.269/2024 of the Pulpally Police Station, Wayanad registered against him, for allegedly committing the offences punishable under Sections 8(1) and 8(2) of the Kerala Abkari Act. 3. The crux of the prosecution case is that: on 06.04.2024 at around 13.30 hours, the Detecting Officer found three liters of illicit arrack in the house of the accused stored in a ten litre can. The contraband was seized then and there at the spot. Thus, the accused has committed the above offences. 4. Heard; Sri.Mathew Kuriakose, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted BAIL APPL. NO. 3678 OF 2024 3 that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. In fact the petitioner is doing ginger cultivation in a far away property on the strength of Annexure C lease agreement. The petitioner is not residing in his house. The petitioner has a previous animosity with a person named Prahladan, a carpenter by profession, who has planted the contraband in the petitioner's property. The petitioner is unmarried. He is looking after to his mentally retarded sister. The petitioner is willing to incorporate with the Detecting Officer. If the petitioner is incarcerated, it would cause severe prejudice to him and his mentally disabled sister. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. He submitted that the application is hit by the rigour under Section 41A of the Act. He stated that there are incriminating materials to substantiate the petitioner's involvement in the crime and that the contraband was seized from the petitioner's property. The BAIL APPL. NO. 3678 OF 2024 4 defence raised by the petitioner is only for the purpose of wriggling out of the prosecution and getting an order of pre-arrest bail. The petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that on 06.04.2024, the Detecting Officer found three liters of arrack stored in a ten liter can in the petitioner's property. The petitioner's defence is that the said contraband was planted in his house by a person named Prahladan who has previous animosity towards the petitioner. The fact remains that the contraband was seized from the petitioner's property and he himself is prima facie responsible for the same. Moreover, the offence alleged against the petitioner falls within the sweep of Section 41A of the Kerala Abkari Act. 8. The petitioner had filed a similar application before the Court of Session, Kalpatta, Wayanad which BAIL APPL. NO. 3678 OF 2024 5 was dismissed as per Annexure D order on the specific finding that there are incriminating materials to substantiate the petitioner's involvement in the crime and that his custodial interrogation is necessary. 9. 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 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 sometimes lead to tampering BAIL APPL. NO. 3678 OF 2024 6 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”. ## 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 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. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, that the application is hit by the rigour under Section 41A of the Act, that the BAIL APPL. NO. 3678 OF 2024 7 petitioner’s custodial interrogation is necessary and recovery is to be effected, 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. Resultantly, the application is dismissed. Sd/- **C.S.DIAS,JUDGE** Rkc/23.05.24 BAIL APPL. NO. 3678 OF 2024 8 ## **APPENDIX OF BAIL APPL. 3678/2024** ## **PETITIONER ANNEXURES** **Annexure A TRUE COPY OF THE FIR IN CRIME NO. 269/2024 OF PULPALLY POLICE STATION Annexure B TRUE COPY OF THE DISABILITY ASSESSMENT CERTIFICATE DATED 13.11.2018 ISSUED BY THE WAYANAD DISTRICT MEDICAL BOARD, AS SINDHU P.K., THE SISTER OF THE PETITIONER Annexure C TRUE COPY OF THE LEASE AGREEMENT DATED 12.01.2024 EXECUTED BY P.K. RAJAN AND VILASINI RAJAN WITH THE PETITIONER Annexure D TRUE COPY OF THE ORDER DATED 23.04.2024 IN CRL. M.C. NO. 285/2024 ON THE FILES OF THE HON'BLE SESSIONS COURT, KALPETTA, WAYANAD**