ANEESH KUMAR K v. STATE OF KERALA

# **`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. 1020 OF 2024 ``` ``` CRIME NO.775/2023 OF RAJAKKAD POLICE STATION, IDUKKI AGAINST THE ORDER DATED 21.09.2023 IN CRMC NO.752 OF 2023 OF DISTRICT COURT & SESSIONS COURT,THODUPUZHA PETITIONER/SOLE ACCUSED: ``` ``` ANEESH KUMAR K AGED 35 YEARS S/O. KUTTAPPAN, KALLUVILAPUHENVEEDU HOUSE, KANJIRAMKULAM KARA, KANJIRAMKULAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT PIN - 695524, PIN - 695524 ``` ``` BY ADVS. JAISON JOSEPH JOSE MATHEW M.N.SANJITH JIMMY JOSEPH VEENA VALLIKANTHAN ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 ``` - **`2 STATION HOUSE OFFICER`** ``` RAJAKKADU POLICE STATION, PIN - 686566, IDUKKI DISTRICT., PIN - 686566 ``` ## **`BY SR PP SRI C S HRITHWIK`** ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ``` 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1020 of 2024 ## -:2:- ## **O R D E R** Dated this the 13[th] day of March, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the sole accused in Crime No.775/2023 of the Rajakkadu Police Station, Idukki, registered against him for allegedly committing the offences punishable under Sections 420, 468 and 471 of the Indian Penal Code and Section 66C of the Information Technology Act. 3. The crux of the prosecution case is that: the accused, while working in the Bisonvalley Panchayat, on 25.05.2023 between 07.00 a.m, and 09.45 a.m., made certain entries in the computer software, using the B.A.No.1020 of 2024 ## -:3:- digital signature of the Secretary, and illegally issued building numbers and occupancy certificates in favour of certain applicants. Thus, the accused has committed the above offences. 4. Heard; Sri. Jaison Joseph, the learned counsel appearing for the petitioner and Sri. C.S.Hrithwik, the learned Senior Public Prosecutor appearing for the respondents. 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. In any given case, the offences under Sections 468 and 420 will not be attracted. The said offences have been deliberately incorporated for the purpose of denying bail to the petitioner. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. B.A.No.1020 of 2024 -:4:- 6. The learned Public Prosecutor seriously opposed the application. He contended that the petitioner had dishonestly and fraudulently used the digital signature of the Secretary of the Panchayat, allotted building numbers, and also issued occupancy certificates without the knowledge of the Secretary. The petitioner’s custodial interrogation is necessary, and recovery is to be effected. If the petitioner is granted an order of prearrest bail, it would hamper with the full and proper investigation. Hence, the application may be dismissed. 7. The petitioner had filed a similar application before the Court of Session, Thodupuzha, by filing Crl.M.C.No.752/2023. By Annexure A1 order dated 21.09.2023, the learned Sessions Judge dismissed the application after observing that the petitioner’s custodial interrogation is necessary and recovery is to be effected. 8. In **Siddharam Satlingappa Mhetre v. State of** B.A.No.1020 of 2024 -:5:- ## **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 B.A.No.1020 of 2024 ## -:6:- 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 over implication 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 B.A.No.1020 of 2024 -:7:- 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. ## 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 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 accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. B.A.No.1020 of 2024 -:8:- 10. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and taking into account the nature, seriousness, and gravity of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary, and also the findings of the learned Sessions Judge in Annexure A1 order, I am convinced that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 10. 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 application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the B.A.No.1020 of 2024 ## -:9:- 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/- **C.S.DIAS,JUDGE** mtk/ 13.03.24 B.A.No.1020 of 2024 -:10:- ## **`APPENDIX OF BAIL APPL. 1020/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1 ``` ``` THE TRUE COPY OF THE ORDER DATED 21.09.2023 IN CRIMINAL M.C. NO.752 OF 2023 ON THE FILE OF HON'BLE SESSIONS COURT, THODUPUZHA ```