Ahmed AFNAN C.M. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 BAIL APPL. NO. 9913 OF 2023 ``` ``` CRIME NO.1789/2023 OF Kottayam East Police Station, Kottayam ``` ## **`PETITIONER/S:`** ``` AHMED AFNAN C.M, AGED 32 YEARS S/O MUHAMMED ALI C.A, BADAKKAMBATH HOUSE, CHEMNAD P.O, KASARGOD, PIN - 671317 BY ADVS. NANDAGOPAL S.KURUP ABHIRAM T.K. ``` ``` RESPONDENT/S: ``` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` OTHER PRESENT: ``` ``` SMT.SEETHA.S, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.9913 of 2023 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No.9913 of 2023** **-----------------------------------** ## **Dated this the 1[st] day of February, 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 second accused in Crime No.1789/2023 of the Kottayam East Police Station, Kottayam, registered against the accused, for allegedly committing the offences punishable under Sections 406, 409, 420, 465, 468, 471 of the Indian Penal Code, 1860, _(‘IPC’, for short)_ and under Secs.66(C) and 66(D) of the Information Technology Act, 2000. 3 Bail Application No.9913 of 2023 3. The gist of the prosecution case is that: the accused (two in number) created a fake online business profile named, ‘Olympic Tradepro’ and, thereafter, in furtherance of their common intention made the defacto complainant believe that if he invested money in the online trading business through the above profile, he would get 15% bonus every month. Accordingly, an amount of Rs.1,24,19,150/- was transferred from the defacto complainant’s bank account to the account of the first accused. However, the accused did not provide the bonus or return the principal amount. Thus, the accused have committed the above offences. 4. Heard; Sri. Nandagopal S Kurup, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Senior Public Prosecutor appearing for the respondent 5. When the bail application came up for consideration on 11.12.2023, this Court directed the petitioner to surrender before the Investigating Officer on 18.12.2023 and subject to 4 Bail Application No.9913 of 2023 himself for interrogation. It was also observed that the Investigating Officer was empowered to interrogate the petitioner for two more days during the said period. 6. Subsequently, when the bail application came up for consideration on 22.12.2023, the Investigating Officer reported that, although the petitioner appeared before him on 18.12.2023 and 20.12.2023, he did not co-operate with the investigation and did not answer the questions that were put to him. Consequently, this Court directed the Investigating Officer to file a statement before the next posting date. 7. Pursuant to the said order, the Investigating Officer had filed a report dated 4.1.2024 stating that the petitioner was not answering the queries that were put to him. Therefore, this Court again, by order dated 8.1.2024, directed the petitioner to appear before the Investigating Officer on 15.1.2024 and 16.1.2024 at 10 a.m to enable the Investigating Officer to carry out an effective investigation. Subsequently, when the 5 Bail Application No.9913 of 2023 bail application came up for consideration on 19.1.2024, the earlier complaint was again reported by the Investigating Officer. Thus, this Court directed the Investigating Officer to file a report. 8. Pursuant to the said order, the Investigating Officer has filed a report dated 24.1.2024, inter alia, stating that although the petitioner appeared before him on 15.1.2024 and 16.1.2024, he evaded the questions that were put to him. Likewise, the petitioner stated that his mobile phone and SIM card were lost. According to the Investigating Officer, the said mobile phone and SIM card are absolutely necessary to retrieve the whatsapp chats and other records that were sent to the mobile number of the petitioner. As the petitioner is not co-operating with the investigation, his custodial interrogation is necessary and recovery is to be effected and also a free, full and proper investigation is being hampered. Hence, the application may be dismissed. 6 Bail Application No.9913 of 2023 ## 9. In **Siddharam 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 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 7 Bail Application No.9913 of 2023 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 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 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 8 Bail Application No.9913 of 2023 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. ## 11. In _**P. Chidambaram v. Directorate of Enforcement [**_ **(2019) 9 SCC 24]** the Hon’ble Supreme Court has held thus: 69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. 12. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the earlier interim orders passed by this Court and that the petitioner is not co-operating with the investigation by not handing over his mobile phone and other records, and further 9 Bail Application No.9913 of 2023 considering the nature, gravity, and seriousness of the economic offence alleged against the petitioner, that the investigation in the case is in progress, that the custodial interrogation of the petitioner is necessary and recovery is to be effected, I am of the definite view that the petitioner has not made out exceptional ground 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. Consequently, the bail application is dismissed. 13. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 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 application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and in accordance 10 Bail Application No.9913 of 2023 with law and if possible dispose of the application on the date of filing of the same itself. 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/Sks/1.2.2024 **C.S.DIAS, JUDGE**