Kerala High Court
Sijo John vs State Of Kerala on 30 September, 2024
Author: C.S.Dias
Bench: C.S.Dias
BAIL APPL. NO. 7407 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
BAIL APPL. NO. 7407 OF 2024
CRIME NO.526/2024 OF Hill Palace Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 08.08.2024 IN CRMC
NO.2290 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM
PETITIONER/S:
SIJO JOHN
AGED 25 YEARS
S/O.JOHNY, PARATTU, PUTHUPPALLY.P.O., PUTHUPPALLY,
KOTTAYAM, PIN - 686011
BY ADVS.
C.A.CHACKO
C.M.CHARISMA
BABU V.P.
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
SR.PP.SMT.PUSHPALATHA M.K.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
30.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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C.S.DIAS,J
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B.A No.7407 of 2024
-----------------------------------
Dated this the 30th day of September, 2024
ORDER
The application is filed under Section 482 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (in short,
'BNSS'), for an order of pre-arrest bail.
2. The petitioner is the 2nd accused in Crime
No.526/2024 of the Hill Palace Police Station,
Ernakulam, which is registered against two accused
persons, for allegedly committing the offence punishable
under Section 381 r/w Section 34 of the Indian Penal
Code (in short, 'IPC').
3. The concise case of the prosecution is that: on
11.06.2024, between 9:00 and 9:30 hours, the 1 st
accused had committed theft of 13 sovereigns of gold
ornaments from the residence of the defacto
complainant. Then, the 2nd accused assisted the 1st
accused to sell the gold ornaments and they
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appropriated the consideration received. Thus, the
accused have committed the above offence.
4. Heard; Sri.C.A.Chacko, the learned counsel
appearing for the petitioner and Smt.Pushpalatha M.K.,
the learned Public Prosecutor.
5. The learned counsel for the petitioner
submitted that the petitioner is innocent of the
accusations leveled against him. There is no material to
substantiate the petitioner's culpability in the crime. The
petitioner has been implicated in the crime only on the
basis of the alleged confession made by the 1 st accused.
The petitioner is a 23 year old boy without any criminal
antecedents. 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 opposed the
application. She submitted that there are incriminating
materials to substantiate the petitioner's involvement in
the crime. The investigation has revealed that the
petitioner has an active role in disposal of the stolen
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property. The petitioner's custodial interrogation is
necessary and recovery is to be effected. By Annexure-A1
order a similar application filed by the petitioner was
dismissed by the Court of Session, Ernakulam. Hence,
the application may be dismissed.
7. The prosecution allegation is that the 1 st
accused had committed theft of gold ornaments from the
house of the defacto complainant and the petitioner had
assisted the 1st accused to sell the gold ornaments.
8. On an evaluation of the materials on record, it
can be gathered that there are incriminating materials to
substantiate the petitioner's involvement in the crime.
However, these are all matters to be investigated and
ultimately decided at the time of trial.
9. 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
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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
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
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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.
11. On a careful analysis of the facts, the rival
submissions made across the Bar and the materials
placed on record, especially on comprehending the
nature, seriousness and gravity of the accusation leveled
against the petitioner, that there are prima facie
materials to substantiate the petitioner's involvement in
the crime, that the petitioner's custodial interrogation is
necessary and recovery is to be effected, I am not
satisfied that the petitioner has made out any valid
ground to invoke the discretionary jurisdiction of this
Court under Sec.482 of the BNSS. Hence, I hold that this
is not a fit case to grant an order of pre-arrest bail.
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 on the date
of surrender itself. Then, if the petitioner moves an
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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
rkc/30.09.2024
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APPENDIX OF BAIL APPL. 7407/2024
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF ORDER OF SESSIONS COURT,
ERNAKULAM DATED 8/8/2024 IN
