Kerala High Court

Ashik E.K vs State Of Kerala on 16 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

          FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945

                         BAIL APPL. NO. 1056 OF 2024

        CRIME NO.894/2023 OF THAMARASSERY POLICE STATION, KOZHIKODE

   AGAINST THE ORDER/JUDGMENT CRMC 87/2024 OF DISTRICT COURT & SESSIONS

                                 COURT,KOZHIKODE

PETITIONER/ACCUSED:

            ASHIK E.K.
            AGED 33 YEARS
            S/O. ABOOBACKER, IRATTAPARAMBIL HOUSE, AMBAYATHODE,
            THAMARASSERY, KOZHIKODE, PIN - 673573

            BY ADVS.
            MITHUN P.
            MERIN THOMAS



RESPONDENT/COMPLAINANT(STATE):

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            ERNAKULAM, PIN - 682031


OTHER PRESENT:

            PP SMT SHYNIMOL V O




      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2024, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL.NO.1056 OF 2024

                                     2




                                   O R D E R

The application is filed under Section 438 of the Code of

Criminal Procedure, 1973, for an order of pre-arrest bail.

2. The petitioner is the sole accused in crime

No.894/2023 of the Thamarassery Police Station, Kozhikode

registered against him for allegedly committing the offences

punishable under Section 420 of the Indian Penal Code.

3. The crux of the prosecution case is that: on

11.11.203 the accused pledged spurious gold weighing

32.24 grms. in Valluvanad Easy Money at Thamarassery

Chunkam and availed a loan of Rs.1,60,800/-. Thus, the

accused has committed the above offences.

4. Heard Sri.Mithun Pavanan, the learned counsel

appearing for the petitioner and Smt.Shynimol V.O., the

learned Public Prosecutor appearing for the respondent.

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 BAIL APPL.NO.1056 OF 2024

implicated in the crime. Even if the allegations in Annexure

AI FIR are taken on its face value, the same will not attract

the offence under Section 420 IPC. 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 condition that may

be imposed by this Court. Hence, the application may be

allowed.

6. The learned Public Prosecutor opposed the

application. She contended that on verification of the

ornaments it turned out that ornaments were made of

spurious gold. The petitioner's custodial interrogation is

necessary, the spurious gold ornaments have to be identified

and recoveries have to be effected. If the petitioner is let off

on 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:

BAIL APPL.NO.1056 OF 2024

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 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 BAIL APPL.NO.1056 OF 2024

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.

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 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 BAIL APPL.NO.1056 OF 2024

liberty is being misused.

9. After bestowing my anxious consideration to the

materials placed on record, the rival submission made across