Kerala High Court
Suresh vs State Of Kerala on 23 May, 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 23RD 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
ORDER
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
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
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
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
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
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
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
