A. Shamnad v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 BAIL APPL. NO. 8977 OF 2023 ``` ## **`Crime No.8/2022 of the Pathanamthitta Police Station`** ## **`PETITIONER/S:`** ``` A.SHAMNAD, AGED 42 YEARS S/O.AZEEZ,MANIYAMKURICHIPURAYIDATHIL HOUSE,KUMBAZHA P.O., PATHANAMTHITTA VILLAGE,PATHANAMTHITTA, PIN - 689653 BY ADVS. AJMAL V. A. A.C.ARFANA FATHIMA V.A. ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.NEEMA.T.V, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.8977 of 2023 ## **C.S.DIAS,J** **====================== Bail Application No.8977 of 2023** **----------------------------------Dated this the 23[rd] day of January, 2024** ## **O R D E R** 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 the accused in Crime No.8/2022 of the Pathanamthitta Police Station, registered against him for allegedly committing the offences punishable under Sections 465,468,471,193,416 and 420 read with Sec.34 of the Indian Penal Code, 1860, _(‘IPC’, for short)._ 3. The gist of the prosecution case is that: the accused with a deliberate intention to acquire the property owned by 3 Bail Application No.8977 of 2023 the maternal aunt of the defacto complainant forged documents in their favour and impersonated themselves as the defacto complainant to receive notice sent from the High Court vide No.e1402211737 dated 13.8.2019 resulting in the High Court passing an order in WP(C) No.18402/2019. Based on the statement of the defacto complainant, the above crime has been registered. Thus, the accused has committed the above offences. 4. Heard; Sri. Ajmal.V.A, the learned counsel appearing for the petitioner and Smt.Neema T.V, the learned Senior 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. He has been falsely implicated in the crime. The petitioner has no criminal antecedents. He is the sole breadwinner of his family. The petitioner is willing to co- 4 Bail Application No.8977 of 2023 operate with the Investigating Officer. Hence, the application may be allowed. 6. The learned Public Prosecutor strenuously opposed the application. She drew the attention of this Court to the statement filed by the Investigating Officer in the above crime wherein it has been held that the petitioner has manipulated court records and obtained favourable orders. The petitioner has criminal antecedents and he is involved in seven other cases of different Police Stations registered for various offences. The petitioner’s custodial interrogation is absolutely necessary for the proper investigation of the crime and the recovery is to be effected. The investigation is at its nascent stage. 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: 5 Bail Application No.8977 of 2023 **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 6 Bail Application No.8977 of 2023 prejudice should be caused to the free, fair and full investigation and there should 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. On an anxious consideration of the materials placed on record, particularly after considering the fact that the petitioner is a person who has criminal antecedents and taking into account the nature, gravity and seriousness of the offences alleged in the present crime wherein the petitioner has allegedly forged documents by impersonation and has secured favourable orders, that the custodial interrogation of the petitioner is necessary and recovery is to be effected, I 7 Bail Application No.8977 of 2023 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. Resultantly, the bail application is dismissed. sd/- **C.S.DIAS,JUDGE** Sks/ 23.1.2024 8 Bail Application No.8977 of 2023 ## **`APPENDIX OF BAIL APPL. 8977/2023`** ``` PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE ISSUED TO ISMAIL PILLAI FROM TALUK OFFICE, NEDUMANGAD DATED 27-2-2010 Annexure A2TRUE COPY OF THE SALE DEED NO.1951/2016 OF S.R.O. PATHANAMTHITTA EXECUTED BY ISMAIL PILLAI IN FAVOUR OF THE PETITIONER Annexure A3TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 18402/2019 DATED 4-2-2020 Annexure A4TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 18402/2019 DATED 4-2-2020 Annexure A5TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 14163/2022 DATED 25-7-2022 Annexure A6TRUE COPY OF THE JUDGMENT IN R.P.NO. 321/2023 DATED 23-6-2023 ```