Kerala High Court
Prakash Kumar vs State Of Kerala on 15 February, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
BAIL APPL. NO. 724 OF 2024
CRIME NO.36/2024 OF SOORANADU POLICE STATION, KOLLAM
AGAINST THE ORDER/JUDGMENT CRMC 76/2024 OF DISTRICT COURT
& SESSIONS COURT,KOLLAM
PETITIONER/ACCUSED:
PRAKASH KUMAR
AGED 55 YEARS
S/O.JANARDHANA KURUP, BABU BHAVANAM, NADUVILE
MURI, PORUVAZHY, KOLLAM, PIN - 690520
BY ADVS.
K.SIJU
ANJANA KANNATH
RESPONDENTS/STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2 STATION HOUSE OFFICER
SOORANADU POLICE STATION, KOLLAM RURAL,
PIN - 690522
SRI. C. S. HRITHWIK - SENIOR PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
BAIL APPL. NO. 724 OF 2024
C.S.DIAS, J.
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B.A. No. 724 OF 2024
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Dated this the 15th day of February, 2024
ORDER
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.36/2024 of the Sooranadu Police Station, Kollam
registered against him for allegedly committing the
offences punishable under Section 3 read with Section 7
of the Essential Commodities Act and Section 3(a) of the
Explosive Substances Act.
3. The gist of the prosecution case is that on
09.01.2024 at around 12.30 hours, while the accused
had stored 141 LPG cylinders meant for public
distribution in a shed attached to his house without any
BAIL APPL. NO. 724 OF 2024
permission or license, and while transferring the
cylinders, one of the cylinders exploded. In the incident,
houses in the locality got damaged. Thus, the accused
has committed the above offences.
4. Heard; Sri. K. Siju the learned counsel appearing
for the petitioner and Sri. C.S. Hrithwik, the learned
Public Prosecutor appearing for the respondents.
5. The learned counsel appearing for the petitioner
submitted that, petitioner is totally innocent of the
accusations levelled against him. He has been falsely
implicated in the crime. Even if the allegations in the
FIR are taken on its face value, the same will not attract
the offences alleged against the petitioner. Petitioner's
custodial interrogation is not necessary. Petitioner is
willing to abide any stringent condition that may
imposed by this Court. Hence, the application may be
allowed.
BAIL APPL. NO. 724 OF 2024
6. The learned Public Prosecutor seriously opposed
the application. He contended that the petitioner has
committed a very heinous crime. The houses in the
entire locality were damaged. 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 hamper with 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
BAIL APPL. NO. 724 OF 2024
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 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
BAIL APPL. NO. 724 OF 2024
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.
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
BAIL APPL. NO. 724 OF 2024
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 a consideration of the facts, the materials
placed on record, the rival submissions made across the
Bar and taking into account the nature, gravity and
seriousness of the offences alleged against the
petitioner, that the investigation in the case is in the
preliminary stage, that the petitioner's custodial
interrogation is necessary and the recovery has to be
effected, I am of the definite view that the petitioner is
not entitled to invoke the extra ordinary jurisdiction of
this Court under Sec.438 of the Code. Therefore, I hold
that this is not a fit case to grant an order of pre-arrest
bail. Consequently, the bail application is dismissed.
Nonetheless, I direct that, if the petitioner
surrenders before the Investigating Officer within 10
BAIL APPL. NO. 724 OF 2024
days from today, he shall be interrogated and,
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, untrammelled by any observations in this order,
consider the bail application on its merits and as
expeditiously as possible. 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
BAIL APPL. NO. 724 OF 2024
APPENDIX OF BAIL APPL. 724/2024
PETITIONER'S ANNEXURES
Annexure A1 THE COPY OF FIR IN CRIME NO. 36/2024 OF
SOORANADU POLICE STATION, KOLLAM RURAL
DATED 09.01.2024
Annexure A2 THE COPY OF ORDER DATED 24.01.2024 IN
CRL.M.C NO.76/2024 ON THE FILE OF
SESSIONS COURT, KOLLAM
RESPONDENT'S ANNEXURES: NIL
