AKBAR K.I. v. Union Territory of Lakshadweep

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA,** ## **1944** **BAIL APPL. NO. 6282 OF 2022** **AGAINST THE ORDER/JUDGMENT IN CRMC 1197/2022 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE CRIME NO.21/2022 OF KAVARATTI POLICE STATION** ## **PETITIONER/ACCUSED:** AKBAR K.I. AGED 56 YEARS, S/O. K.K. KOYA RETD. AGRICULTURE DEMONSTRATOR AGRICULTURE DEPARTMENT, KAVARATTI RESIDING AT ALEXA HOUSE, NETAJI NAGAR, WEST HILL, CALICUT, KERALA., PIN - 673005 BY ADV P.SANJAY ## **RESPONDENT/STATE:** UNION TERRITORY OF LAKSHADWEEP, REP. BY ASSISTANT SOLICITOR GENERAL, HIGH COURT OF KERALA, KOCHI - 682031. BY ADV SHRI.SAJITH KUMAR V., SC, LAKSHADWEEP ADMINISTRATION **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A No.6282 of 2022 2 K.BABU, J. -------------------------------------- B.A No.6282 of 2022 --------------------------------------- Dated this the 6[th] day of December, 2022 ## O R D E R This is an application filed under Section 438 of the Code of Criminal Procedure. 2. The petitioner is the sole accused in Crime No.21/2022 of Kavaratti Police Station, Union Territory of Lakshadweep. The offences alleged against the petitioner are punishable under Sections 409, 464, 465, 468, 471, 477-A of the Indian Penal Code and Sections 13(1)(c), 13(1)(d), 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. ## 3. Prosecution case : 3.1. The petitioner is a retired Government employee. He was employed as Demonstrator in the Department of Agriculture, Kavaratti. The petitioner, being a public servant, has committed criminal breach of trust after forging documents. The petitioner has made falsification of accounts and transferred public money to his personal account and thereafter misappropriated those amounts for 3 B.A No.6282 of 2022 his personal purposes. The petitioner has also committed the offence of criminal misconduct by acquiring property disproportionate to his known sources of income. 3.2. On 29.11.2015, Rs.45,000/- was sanctioned by the petitioner to one Mr. V.M.Abdul Gafoor for meeting office expenditure, but remitted to the personal account of the petitioner. The petitioner manipulated the counterfoil of the bank slip to make it appear that the amount has been paid to Sri.V.M.Abdul Gafoor. On the same day, an amount of Rs.85,000/- was sanctioned by the petitioner and remitted to his personal account. 3.3. On 16.01.2016, the petitioner sanctioned Rs.35,000/- in his favour as tour advance for attending KVK, Zone Symposium at University of Agricultural Science, Dharvad, Karnataka, but failed to attend the Symposium or settle the amount. 3.4. A sum of Rs.1,85,497/- was sanctioned by the petitioner in his favour for organizing Fasal Bheema Yojana and remitted to the official account of the programme co-ordinator and thereafter transferred to his personal account. The petitioner himself sanctioned those amounts and drew the money from the account in B.A No.6282 of 2022 4 contravention to the rules and utilised it for his personal expenses. 4. The case of the petitioner is that he is a victim of departmental politics and professional rivalry. According to the petitioner, the aforecaptioned FIR has been registered with intent to falsely implicate him in the crime. 5. Heard Sri. P.Sanjay, the learned counsel appearing for the petitioner and Sri. V. Sajith Kumar, the learned Standing Counsel for the Lakshadweep Administration. 6. The learned counsel for the petitioner submitted that the petitioner has been falsely implicated due to departmental politics and professional rivalry. Consequent to the rivalry, the senior officers and his colleagues are attempting to block his pension and other retirement benefits. 7. The learned Standing Counsel countered and submitted that the materials produced before the Court are sufficient to conclude that the petitioner committed the offences as alleged. The learned Standing Counsel submitted that the investigation is in the preliminary stage and granting bail to the petitioner would affect the progress of the investigation. It is submitted that even after getting B.A No.6282 of 2022 5 notice under Section 41A of the Cr.PC, the petitioner failed to join the investigation. The Standing Counsel contended that the custodial interrogation of the petitioner is required. 8. The learned counsel for the petitioner submitted that in so far as the allegations levelled against the petitioner are concerned the custodial interrogation of the petitioner is not required and therefore, he is entitled to anticipatory bail. The learned counsel submitted that the Investigating agency is only required to verify the official documents to proceed with the investigation relating to the allegations levelled against the petitioner. Even if no case for the custodial interrogation of the petitioner is made out that alone is not a ground to grant anticipatory bail. While dealing with this question, the Apex Court in Sumitha Pradeep v. Arun Kumar C.K (2022 SCC Online SC 1529) held thus: “In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory B.A No.6282 of 2022 6 bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail.” 9. The factors and parameters that need to be taken into consideration while dealing with anticipatory bail are: - (1) the nature and gravity of the accusation and the exact role of the accused; - (2) the antecedents of the applicant including - imprisonment on conviction for cognizable offence; - (3) possibility of fleeing from justice; - (4) possibility of the accused's likelihood to repeat similar or other offences. - (5) accusations have been made only with the object of injuring or humiliating the applicant by arrest; - (6) impact of grant of anticipatory bail particularly affecting a very large number of people; B.A No.6282 of 2022 7 - (7) courts must evaluate the entire available material carefully; greater care should be taken when the accused is implicated using Sections 34 and 149; - (8) a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; - (9) court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; - (10) 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 B.A No.6282 of 2022 8 course of events, the accused is entitled to an order of bail. {Vide: Gurbaksh Singh Sibbia and Ors. v. State of Punjab [(1980) 2 SCC 565], Bhadresh Bipinbhai Sheth v. State of Gujarat [(2016) 1 SCC 152] and Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Ors. [(2020) 5 SCC 1]}. 10. The offences alleged against the petitioner are grave. The petitioner failed to establish that the accusations have been made against him only with the object of injuring or humiliating him by arrest. The petitioner has failed to establish a prima facie case for getting the benefits contained in Section 438 Cr.P.C. Therefore, the petitioner is not entitled to anticipatory bail as prayed for. 11. It is legally permissible for this Court to direct the accused to surrender before the Jurisdictional Court while rejecting a prayer for anticipatory bail [See: Nathu Singh v. State of Uttar Pradesh MANU/SC/0360/2021 : (2021 (3) KLT Online 1113 (SC) and Rahul v. State of Kerala (ILR 2021 (4) Kerala 64)] . 12. Resultantly, the prayer for anticipatory bail is rejected. The B.A No.6282 of 2022 9 petitioner is directed to surrender before the jurisdictional Court within a period of two weeks from this date. On his surrender before the jurisdictional Court, if the petitioner prefers an application seeking regular bail, the Court shall dispose of the application preferably on the same day itself. The Bail Application stands dismissed. K.BABU, JUDGE KAS B.A No.6282 of 2022 10 ## **APPENDIX OF BAIL APPL. 6282/2022** |PETITIONER ANNEXURES|PETITIONER ANNEXURES| |---|---| |Annexure A-1|TRUE COPY OF THE INTEGRITY CERTIFICATE| ||ISSUED BY THE DDO DEPARTMENT OF| ||AGRICULTURE DATED 28.11.2020 BEARING| ||FILE NUMBER F.NO/6/4/2020-MOK(DP)| |Annexure A-2|TRUE COPY OF THE ORDER DATED 05-01-2017| ||IN O.A. NO. 270/2016| |Annexure A-3|TRUE COPY OF THE ORDER F.NO. 1/2/2017-| ||DP(AGRI)(8)/722 DATED 15-10-2018 OF THE| ||PETITIONER SHOWING PAY DETAILS| |Annexure4|TRUE COPY OF THE FIR IN CRIME NO.21/2022| ||OF ANDROTH POLICE STATION TOGETHER WITH| ||ENQUIRY REPORT DATED 29.10.2021 NUMBERED| ||AS F.NO. 10/2018/VIG| |Annexure A-5|TRUE COPY OF THE ORDER OF THE| ||DIRECTORATE OF AGRICULTURE DATED| ||04.03.2016 NUMBERED AS F.NO.11/1/2015-| ||AGRI(KVK)/104| |Annexure A-6|TRUE COPY OF THE STATEMENT OF EXPENSES| ||SUBMITTED BY THE PETITIONER DATED| ||29.03.2016| |Annexure A-7|TRUE COPY DEPOSIT SLIP OF SYNDICATE| ||BANK, KILTAN DATED 11.05.2016 SHOWING| ||DEPOSIT OF RS. 20000 INTO THE ACCOUNT| ||DR. V.M. ABDUL GAFOOR| |Annexure A-8|COPY OF THE REQUEST DATED 02-08-2022| ||MADE TO THE BANK TOGETHER WITH POSTAL| ||RECEIPT| |Annexure A-9|TRUE COPY OF THE SUPPORTING BILLS OF| ||EXPENSES SETTLED BY THE PETITIONER ON| ||BEHALF OF DR. V.M. ABDUL GAFOOR| |Annexure A-10|TRUE COPY OF THE STATEMENT OF EXPENSES| ||SUBMITTED BY THE PETITIONER DATED| ||14.07.2016| |Annexure11|TRUE COPY OF THE COMMUNICATION FROM ICAR| ||DATED 02.09.2010 REGARDING THE ANNUAL| ||REVIEW WORKSHOP AT DHARVAD| |Annexure12|TRUE COPY OF THE ORDER DATED 01.10.2010| ||ISSUED TO THE PETITIONER BEARING NUMBER| ||F.NO.1/6/2009-KVK(PP) DIRECTING HIM TO| ||ATTEND THE MEETING AT DHARVAD| |Annexure13|TRUE COPY OF THE SANCTION ORDER DATED| B.A No.6282 of 2022 11 ||16.01.2016 NUMBERED AS F.NO.2/2/2015KVK| |---|---| ||FOR PROGRAMME AT KAU, MANNUTHY| |Annexure14|TRUE COPY OF THE TOUR PROGRAMME| ||SUBMITTED BY THE PETITIONER FOR APPROVAL| ||DATED 06.07.2016| |Annexure A-15|TRUE COPY OF THE COMMUNICATION FROM ICAR| ||DATED 09.03.2016| |Annexure A-16|TRUE COPY OF THE INTER OFFICE| ||COMMUNICATION REGARDING THE PMFBY| |Annexure17|TRUE COPY OF THE EMAIL DATED 01.04.2016| ||FROM ATARI, BENGALURU SANCTIONING| ||RS.1,85,497/-| |Annexure A-18|TRUE COPY OF THE INTER OFFICE| ||COMMUNICATION REGARDING THE PMFBY| |Annexure19|TRUE TRUE COPY OF THE SANCTION ORDER| ||DATED 19.04.2016 ISSUED BY THE| ||PETITIONER NUMBERED AS F.NO. 12/2/2016-| ||KVK(1)| |Annexure20|TRUE COPY OF THE NOTE FROM ICAR| |Annexure21|TRUE COPY OF THE INVOICE NO.| ||FC/6229/2011-12 DATED 28.07.2011 SHOWING| ||SANCTION AND WITHDRAWAL BY SRI.| ||MULLAKOYA, PROGRAMME COORDINATOR| |Annexure22|TRUE COPY OF THE PETITIONER'S PRIOR| ||INTIMATION FOR LAND PURCHASE TRANSACTION| ||AT KAVARATI DATED 20.07.1997| |Annexure23|TRUE COPY OF THE CERTIFICATE ISSUED BY| ||LIC HOUSING FINANCE DATED 08.08.2010| ||REGARDING DEPOSIT OF DOCUMENT OF THE| ||LAND AT KOZHIKODE| |Annexure24|TRUE COPY OF THE 41 A NOTICE DATED 06-| ||06-2022| |Annexure25|TRUE COPY OF THE PETITIONER'S COMPLAINT| ||DATED 13.06.2022| |Annexure26|TRUE COPY OF THE ORDER DATED 13.07.2022| ||IN BA 4912/2022| |Annexure27|TRUE COPY OF THE ORDER OF THE SESSION'S| ||COURT, KOZHIKODE DATED 27.07.2022 IN| ||CRIME NO. 21/2022| |RESPONDENT ANNEXURES|| |Annexure R1(a)|A true copy of the Notice dated| ||06.06.2022 by the Investigating Officer| ||to the Petitioner under Section 41A(1)| ||along with its Acknowledgment| B.A No.6282 of 2022 12 Annexure R1(b) A true copy of the Notice dated 30.06.2022 issued by the Investigating Officer to the Petitioner/Accused under Section 41A(1) of CrPC.