Petitioner accused of unlawful possession and use of explosive substances on his property sought pre-arrest bail after his earlier Sessions application was dismissed and he failed to surrender. The High Court found no exceptional grounds, held custodial interrogation necessary, and dismissed the bail application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
BAIL APPL. NO. 3560 OF 2024
CRIME NO.194/2024 OF VENGARA POLICE STATION, MALAPPURAM
PETITIONER:
JAHFAR
AGED 37 YEARS
S/O ALAVI KUTTY,
KUZHIKKAOARA HOUSE,
CHIRAYIL POST VTC NEDIYIRUPPU,
MALAPPURAM, PIN – 673638
BY ADVS.K.S.ARUN KUMAR
AYISHA RIFATH K.
AMRUTHA K P
ELDHO BABY
VIJAY SANKAR V.H.
RESPONDENT:
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
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.3560/2024
-:2:-
Dated this the 21st day of May,2024
O R D E R
The application is filed under Section 438 of the Code of Criminal Procedure, 1973(in short, ‘Code’), for an order of pre-arrest bail.
B.A.No.3560/2024
-:3:-
committed the above offences.
counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor.
B.A.No.3560/2024
-:4:-
would suffer custodial torture. In any given case, the petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed.
B.A.No.3560/2024
-:5:-
but a sheer abuse of the process of law. If the
petitioner is granted an order of pre-arrest bail, it would torpedo the investigation. Hence, the application may be dismissed.
B.A.No.3560/2024
-:6:-
the petitioner’s property. Merely because the petitioner states that he is not using the property, the same cannot be a ground to hold that the petitioner has not committed the offence, especially because he is the owner of the property and is responsible to account for whatever happens in his property.
B.A.No.3560/2024
-:7:-
powers under Section 438 of the Code has observed as follows:
“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
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
B.A.No.3560/2024
-:8:-
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”
B.A.No.3560/2024
-:9:-
against the petitioner, that the petitioner’s custodial interrogation is necessary and the investigation is only
at its nascent stage, I am not satisfied that the petitioner has made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed.
Sd/-
C.S.DIAS,JUDGE
DST/21.05.24
1 issue framed by the court
Whether the petitioner was entitled to pre-arrest bail under Section 438 CrPC for alleged offences under the Explosive Substances Act despite a prior Sessions Court dismissal and failure to surrender.
Colour shows how this judgement treated each authority
Srikant Upadhyay v. State of BiharRelied on¶9
Srikant Upadhyay v. State of Bihar [2024 KHC OnLine 6137]
Jai Prakash Singh v. State of Bihar and anotherRelied on¶10
Jai Prakash Singh v. State of Bihar and another [(2012) 4 SCC 379] · Who else cites this
3 provisions across 3 enactments
JAHFAR
STATE OF KERALA
C.S.DIAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court