Abdul Azeez T.K. and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945** **BAIL APPL. NO. 1544 OF 2024** **CRIME NO.111/2024 OF ELAMAKKARA POLICE STATION, ERNAKULAM** ## **PETITIONERS/ACCUSED 1 TO 3:** **1 ABDUL AZEEZ T.K AGED 70 YEARS S/O KUTTY, THALAKOTTIL HOUSE, K.D PLOT, KALAMASSERY, ERNAKULAM., PIN - 683104 2 K.A ANTONY AGED 69 YEARS S/O AGUSTIN, KOLOTHUMVEETIL, THRIKKAKARA NORTH VILLAGE, EDAPPALLY P.O, ERNAKULAM., PIN - 682024 3 K.K ABDUL RAHMAN AGED 65 YEARS KADAVILAN HOUSE, CHERAI P.O, ERNAKULAM., PIN - 683514** **BY ADVS. ASHIK K.MOHAMED ALI SAJNA T.UMMER VISHNU V. NAIR MUHAMMED RIFA P.M. GAYATHRI ASHISH NAIR NAZRIYA NOUSHAD** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **2 THE STATION HOUSE OFFICER ELAMAKKARA POLICE STATION, KEERTHI NAGAR, ELAMAKKARA, ERNAKULAM-682026 (THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM), PIN - 682031** - **3 SUJATHA AGED 53 YEARS 'INDU', NEAR SNDP HALL, ELAMKULAM, ERNAKULAM., PIN - 682020** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.03.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.1544 OF 2024** **2** ## **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 petitioners are the accused 1 to 3 in Crime No.111/2024 of the Elamakkara Police Station, Ernakulam, registered against them for allegedly committing the offence punishable under Section 420 r/w.S.34 of the Indian Penal Code. 3. The gist of the prosecution case is that: the accused in furtherance of their common intention to deceive the students of the Al-Ameen Public School, Edappally distributed coupons to the students with the phone number of the Narcotic Control Helpline. They distributed 250 booklets of coupons, each containing ten coupons. They distributed it among the students for collecting the amount. The accused did not have any authority or permission to use **BAIL APPL.NO.1544 OF 2024** **3** the phone numbers of the Narcotic Control Helpline. They did the above act only with an intention to unlawfully enrich themselves. Hence, the accused have committed the above offences. 4. Heard; Sri.Ashik K. Mohamed, the learned counsel appearing for the petitioners and Smt. Seetha S, the learned Senior Public Prosecutor appearing for the respondents 1 and 2. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. It was with the permission and authority of the school/defacto complainant that the petitioners had printed the coupons and distributed it among the students. Even though the coupons were distributed and money was collected, the same was not handed over to the petitioners. Therefore, the petitioners have not cheated the students as alleged by the prosecution. The number that was printed is the correct number of the Narcotic Control Helpline. In any given case, the petitioners' custodial **BAIL APPL.NO.1544 OF 2024** **4** interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that the petitioners had deliberately printed the coupons with the Narcotic Control Helpline in order to deceive the students and make them purchase the coupons. The petitioners have not obtained any permission from the said Helpline before incorporating the phone number on the coupons. It is taking into account all these aspects that the school authorities had withheld the payment that was collected from the students. It is not the question of collection of the amount, but it is the intention of the petitioners to incorporate the telephone number that shows their complicity in the crime. The petitioners' custodial interrogation is necessary and recoveries have to be effected. The investigation is only at a preliminary stage. If the petitioners are granted an order of pre-arrest bail, it would sabotage the investigation. Hence, the application may be dismissed. **BAIL APPL.NO.1544 OF 2024** **5** 7. The crux of the prosecution allegation is that the accused 1 to 3 in furtherance of their common intention had without any authority or permission incorporated the telephone number of the Narcotic Control Helpline on the booklets and distributed it among the students of the defacto-complainant school and attempted to get money from the students. 8. The petitioners had filed a similar application before the Court of Session, Ernakulam as Crl.M.C.No.445/2024. The learned Sessions Judge, by Annexure A3 order, on prima facie finding that the accusations attributed against the petitioners are justifiable, the petitioners' custodial interrogation is necessary and recoveries have to be effected, dismissed the application. 9. In S **iddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: **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 **BAIL APPL.NO.1544 OF 2024** **6** 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 **BAIL APPL.NO.1544 OF 2024** **7** factors, namely, no 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. ## 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 a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusations **BAIL APPL.NO.1544 OF 2024** **8** levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 11. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, especially taking into account the fact that the petitioners had admittedly printed the coupons with the phone number of the Narcotic Control Helpline of the Additional Director General of Police and without their permission or authority, I am prima facie satisfied that the accusations levelled against the petitioners are justifiable. On comprehending the nature, seriousness and gravity of the offences alleged against the petitioners, that the petitioners' custodial interrogation is necessary and that the recovery is to be effected, I am convinced that the petitioners have not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.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. **BAIL APPL.NO.1544 OF 2024** **9** Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall consider the bail application on its merits. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. **Sd/C.S.DIAS JUDGE** **shg**