Akhil Shaji and Shibin Balachandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945** ## **BAIL APPL. NO. 469 OF 2024** **CRIME NO.2636/2023 OF Ernakulam South Police Station, Ernakulam** ## **PETITIONERS/3RD AND 4TH ACCUSED:** - **1 AKHIL SHAJI AGED 30 YEARS S/O. SHAJI M.K., 'MALAVEETTIL', EDAVANAKKAD P.O., ERNAKULAM, PIN - 682502** - **2 SHIBIN BALACHANDRAN AGED 36 YEARS S/O. BALACHANDRAN, VELATHAZHATH HOUSE, ELAMKUNNAPUZHA P.O., ERNAKULAM, PIN - 682503** **BY ADVS. MOHAMMED SIYAD M.F. SUNANDA SUKUMARAN** ## **RESPONDENTS/STATE AND INVESTIGATING OFFICER:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 THE SUB INSPECTOR OF POLICE ERNAKULAM TOWN SOUTH POLICE STATION, THEVARA P.O., ERNAKULAM, PIN - 682013** **sr pp sri c s hrithwik ,sr pp smt seetha s** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.02.2024, ALONG WITH Bail Appl..11594/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NOs. 469 of 2024 and 11594 OF 2023** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945** **BAIL APPL. NO. 11594 OF 2023** **CRIME NO.2548/2023 OF Ernakulam South Police Station,** ## **Ernakulam** ## **PETITIONERS/3RD AND 4TH ACCUSED:** **1 AKHIL SHAJI, AGED 30 YEARS S/O. SHAJI M.K., 'MALAVEETTIL', EDAVANAKKAD P.O., ERNAKULAM, PIN - 682502 2 SHIBIN BALACHANDRAN, AGED 36 YEARS S/O. BALACHANDRAN,VELATHAZHATH HOUSE, ELAMKUNNAPUZHA P.O.,ERNAKULAM, PIN - 682503** **BY ADV MOHAMMED SIYAD M.F.** ## **RESPONDENTS/STATE AND INVESTIGATING OFFICER:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE SUB INSPECTOR OF POLICE, ERNAKULAM TOWN SOUTH POLICE STATION, THEVARA P.O., ERNAKULAM, PIN - 682013** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.02.2024, ALONG WITH Bail Appl..469/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NOs. 469 of 2024 and 11594 OF 2023** **3** ## **O R D E R** These applications are 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 3 and 4 in Crime Nos.2548/2023 and 2636/2023 of the Ernakulam South Police Station, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 406 and 420 read with Sec.34 of the Indian Penal Code, 1860, (‘IPC’, for short) 3. The essence of the prosecution case is that, the accused with the intention to deceive the de facto complainant and other persons propagated that they would teach them German language and, thereafter, secure them employment in 'Ausbuilding Nursing Course' in Germany. Accordingly, they have collected Rs.2,64,300/- each from the de facto complainant and similarly situated persons. However, the accused failed to ## **BAIL APPL. NOs. 469 of 2024 and 11594 OF 2023** **4** keep up to their promise and refused to return the money. The accused have received a total amount of Rs.80,00,000/- from the job aspirants. Thus, the accused have committed the above offenes. 4. Heard; Sri. Mohammed Siya M.F, the learned counsel appearing for the petitioners,and Smt.Seetha.S and Sri.C.S.Hrithwik, the learned Senior Public Prosecutors appearing for the respondents. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. Annexure-A1 Certificate of Incorporation would substantiate that the petitioners had no role in the Company to which the amount was paid, because they were not the Directors of the Company. The petitioners have been falsely implicated in the crime. They are law abiding citizens. The petitioners are willing to cooperate with the investigation and abide by any stringent condition that may be imposed by this Court **BAIL APPL. NOs. 469 of 2024 and 11594 OF 2023** **5** Hence, the applications may be allowed. 6. The learned Public Prosecutors vehemently opposed the applications. They contended that the petitioners and other accused have syphoned of Rs.80 lakh from the de facto complainant and similarly situated persons on the assurance that they would be taught German language and then secured employments in Germany. The amounts were received even prior to incorporation of Annexure – A1 Certificate. The petitioners custodial interrogation is necessary for proper and full investigation of the crime and recoveries have to be affected. If the petitioners are granted orders of prearrest bail, it would certainly hamper with the investigation. Hence, the applications may be dismissed. 7. The essence of the prosecution case is that, accused 1 and 2 with the intention to defraud the de facto complainant and similarly situated job aspirants received money from them on the assurance that they would be taught German language and than be taken to Germany **BAIL APPL. NOs. 469 of 2024 and 11594 OF 2023** **6** for employment. However, after collecting Rs.80 lakh, they failed to secure the employment and refused to return the amount. ## 8. 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 **BAIL APPL. NOs. 469 of 2024 and 11594 OF 2023** **7** 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 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 **BAIL APPL. NOs. 469 of 2024 and 11594 OF 2023** **8** 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.” 9. 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 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. 10. The petitioners had moved applications for pre-arrest bail before the Court of Session, Ernakulam, which were also dismissed by separate orders in Crl.M.C.Nos.3416/2023 and 3508/2023 on the ground that the petitioners custodial interrogation is necessary and recovery is to be effected. **BAIL APPL. NOs. 469 of 2024 and 11594 OF 2023** **9** 11. After bestowing my anxious consideration to the materials placed on record, the rival submission made across the Bar, and taking into account the nature, gravity, and seriousness of the offences alleged against the petitioners, that the investigation in the case is at its nascent stage, that the custodial interrogation of the petitioners is necessary and recovery is to be effected, I 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. Consequently, these bail applications are dismissed. 12. 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, untrammelled by any observations in this order, consider **BAIL APPL. NOs. 469 of 2024 and 11594 OF 2023** **10** the bail application on its merits and as expeditiously as possible. If the petitioners does 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 these cases. **SD/-C.S.DIAS(J) JUDGE** lsn