Anil Kumar and Sunitha Kumari v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 19[TH] DAY OF SEPTEMBER 2023 / 28TH BHADRA, ``` ``` 1945 ``` ``` BAIL APPL. NO. 6671 OF 2023 ``` ## **`PETITIONER/S:`** ``` 1V.ANILKUMAR, AGED 55 YEARS S/O. M.VELAYUDHAN ASARI, RESIDING AT VAIGA, VELLUPPARA, VELLANAD P.O, THIRUVANANTHAPURAM, SECRETARY IN CHARGE, VELLANADU SERVICE CO- OPERATIVE BANK, LTD.NO.2379, VELLANAD P.O., THIRUVANANTHAPURAM, PIN - 695543 2V.SUNITHAKUMARI, AGED 51 YEARS KAVITHA BHAVAN, VALIYARA, PERUNAD P.O, THIRUVANANTHAURAM , SENIOR CLERK, VELLANADU SERVICE CO-OPERATIVE BANK, LTD.NO.2379, VELLANAD P.O., THIRUVANANTHAPURAM, PIN - 695543 BY ADV P.N.MOHANAN ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 *ADDL R2P K KUNJAN ASWATHY BHAVAN, ASWATHY BHAVAN, PADMANABHAN NAGAR, NITHRANIKETAN P O, VELLANADU, THIRUVANANTHAPURAM- 695542 *(ADDL R2 IS IMPLEADED AS PER ORDER DATED 18-8- 23 IN CRL MA 1/23) BY ADVS. THOMAS ABRAHAM MERCIAMMA MATHEW ASWIN.P.JOHN R.ANANTHAPADMANABAN PAUL BABY ``` B.A No. 6671 of 2023 **==> picture [20 x 8] intentionally omitted <==** ## **`OTHER PRESENT:`** ``` REKHA,SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No. 6671 of 2023 ..3.. K.BABU, J. ------------------------------------------B.A No. 6671 of 2023 --------------------------------------------Dated this the 19[th] day of September, 2023 ## **O R D E R** This application is filed under Section 438 of the Code of Criminal Procedure. 2. The petitioners are accused Nos.1 and 2 in Crime No.1/2023/SIU-II of Vigilance and Anti-Corruption Bureau, Thiruvananthapuram. The offences alleged against the petitioners are punishable under Sections 468, 471, 409, 477A, 420, 120B r/w Section 34 of Indian Penal Code and Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. 3. The prosecution case is as follows: Petitioner No.1 is the Senior Clerk - cum - Secretary-in-charge of Vellanad Service Co-operative Bank. Petitioner No.2 is a Senior Clerk in the Bank. They have facilitated their relatives to avail excess interest against their deposits and also B.A No. 6671 of 2023 **==> picture [20 x 8] intentionally omitted <==** committed irregularities by not maintaining proper accounts and registers. 4. Heard the learned counsel appearing for the petitioners, the learned Senior Public Prosecutor and the learned Counsel appearing for the de facto complainant. 5. The learned counsel for the petitioners submitted that the crime has been registered against the petitioners due to political rivalry. It is further submitted that an enquiry was conducted under Section 65 of the Cooperative Societies Act based on the complaint of the de facto complainant by the Registrar of Co-operative Societies and no discrepancies were found against the petitioners. It is submitted that, in a further enquiry conducted under Section 66 of the Co-operative Societies Act, no irregularities were found. The learned Counsel submitted that the petitioners are ready to co-operate with the investigation. 6. The learned Senior Public Prosecutor submitted that the investigation is in the preliminary stage. B.A No. 6671 of 2023 **==> picture [20 x 8] intentionally omitted <==** 7. The learned counsel for the de facto complainant contended that the material made available by the prosecution would establish the complicity of the petitioners in the alleged offences. 8. The learned counsel for the petitioners submitted that the irregularities found in the audit, as alleged by the prosecution, would at the most amount to omissions in the discharge of their official duties which were later rectified. It is the further case of the petitioners that they have not intentionally committed any offences. The petitioners are prepared to co-operate with the investigation. 9. While considering the scope of jurisdiction under Section 438 Cr.P.C., the Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] held thus: “31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and B.A No. 6671 of 2023 ..6.. humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216] , which, though, was B.A No. 6671 of 2023 **==> picture [20 x 8] intentionally omitted <==** a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.” ## 10. In Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694] the Apex Court held thus:- “113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the B.A.Nos.5010 of 2021 & Connected cases 40 accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.” B.A No. 6671 of 2023 **==> picture [20 x 8] intentionally omitted <==** (In Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1]) the declaration of law in Siddharam Satlingappa Mhetre that no condition can be imposed while granting order of anticipatory bail alone was overruled) 11. In Sushila Aggarwal, the Constitution Bench of the Apex Court, following the decision in Gurbaksh Singh Sibbia, held that while considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. 12. Having considered the entire circumstances on the touchstone of the precedents mentioned above, I am of the view that the petitioners/accused are entitled to anticipatory bail. In the result, the bail application is allowed as follows: B.A No. 6671 of 2023 ..9.. - (i) The petitioners shall appear before the Investigating Officer on 29.09.2023 between 10.00 AM and 11.00 AM for interrogation. - (ii) The Investigating Officer is directed to release the petitioners on bail, in the event of their arrest, on their executing bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties each for the like sum. - (iii) The petitioners shall appear before the Investigating Officer on all Saturdays between 10.00 AM and 11.00 AM for a period of three months or till the final report is filed, whichever is earlier. - (iv) The petitioners shall not influence the witnesses in this case or tamper with the evidence. - (v) They shall fully co-operate with the B.A No. 6671 of 2023 ..10.. investigation, including subjecting themselves to `deemed custody’, as observed in **Gurbaksh Singh Sibbia & Ors. v. State of Punjab** [(1980) 2 SCC 565] and **Sushila Aggarwal & Others v. State (NCT of Delhi) and Ors.** (AIR 2020 SC 831), for the purpose of discovery or identification, if any. **K. BABU, JUDGE** kkj