Anil Kumar K.G. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2259 OF 2024 ``` ``` AGAINST THE ORDER DATED IN Bail Appl. NO.1622 OF 2024 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/FIRST ACCUSED:`** ``` ANILKUMAR K.G. AGED 45 YEARS ``` ``` SON OF GOPALAKRISHNAN K.R, KOLLAMPARAMBIL, KATTAPPANA, IDUKKI DISTRICT, PIN - 685501 ``` ``` BY ADV PEEYUS A.KOTTAM ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.2259 of 2024 -:2:- Dated this the 5[th] day of April, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.234/2024 of the Kattappana Police Station, Idukki, registered against the accused for allegedly committing the offence punishable under Section 420 r/w Section 34 of the Indian Penal Code, 1860. 3. The essence of the prosecution case is that: the accused, in furtherance of the common intention, to make unlawful gain and to make unlawful loss to the defacto complainant-Central Bank of India, Kattappana branch, where the first accused was working as an appraiser, with the able assistance of the other accused, pledged gold ornaments in the bank, knowing B.A.No.2259 of 2024 ## -:3:- it to be spurious, and during a random check conducted by the defacto complainant, it turned out that the accused have caused a loss of Rs.2,29,50,000/-, to the bank. Thus, the accused have committed the above offence. 4. Heard: Sri.Peeyus A. Kottam, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik, the learned Public Prosecutor appearing for the respondent. 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. The offence under Section 420 will not be attracted against the petitioner. The petitioner has diligently discharged his duties as an appraiser. The loan has been sanctioned by the superior authorities of the petitioner at their discretion. The petitioner has only certified the gold B.A.No.2259 of 2024 -:4:- that was pledged with the bank. A reading of Annexure A1 FIR would substantiate that the allegations against the petitioner are vague without any particular details, which by itself shows the falsity in the crime. In any given case, the petitioner's custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioner is entitled to an order of prearrest bail. 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a report. The investigation has now been entrusted to the Deputy Superintendent of Police, District Crime Branch, Idukki. The investigation has prima facie revealed that there are incriminating materials to show the petitioner’s involvement in the crime. The petitioner, in connivance with the other accused, had knowingly certified the spurious gold as genuine gold B.A.No.2259 of 2024 ## -:5:- and cheated the defacto complainant to the tune of Rs.2,29,50,000/-. 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 sabotage the investigation. Hence, the application may be dismissed. 7. On an analysis of the materials placed on record, it can be gathered that the specific allegation alleged against the petitioner is that while he was working as an appraiser in the bank, he consciously certified spurious gold as genuine and cheated the defacto complainant bank. 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 B.A.No.2259 of 2024 -:6:- 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 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 B.A.No.2259 of 2024 -:7:- 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. ## 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 B.A.No.2259 of 2024 -:8:- 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. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137], the Hon’ble Supreme Court, after referring to the earlier precedents on the point, has succinctly laid down the law in the following lines: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) B.A.No.2259 of 2024 ## -:9:- SCC 679). 24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx xxx xxx xxx” ## 10. After bestowing my anxious consideration to the facts, the materials placed on record, and the rival submissions made across the Bar, and on comprehending the nature, seriousness, and gravity of B.A.No.2259 of 2024 ## -:10:- the accusations levelled against the petitioners, that the investigation in the case is at the preliminary stage, that the petitioners’ custodial interrogation is necessary, and that the recovery is to be effected, I am not satisfied that the petitioner has not made any 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. Resultanly, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** mtk/05.04.24 B.A.No.2259 of 2024 -:11:- ## **`APPENDIX OF BAIL APPL. 2259/2024`** ``` PETITIONER ANNEXURES Annexure A1THE TRUE COPY OF THE FIR IN KATTAPPANA POLICE STATION CRIME NO 234/2024 REGISTERED AGAINST THE PETITIONER Annexure A2THE TRUE COPY OF THE BAIL ORDER IN B.A.NO. 1672/2024 DATED 11.03.2024 PASSED BY THIS HON'BLE COURT ```