Anilkumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946** **BAIL APPL. NO. 3768 OF 2024** **CRIME NO.0841/2024 OF Angamali Police Station, Ernakulam** **PETITIONER/S:** **ANILKUMAR, AGED 49 YEARS S/O APPUKUTTAN PILLA, MADATHILAZHIKKATH HOUSE, POOYAPPALLY, KOLLAM RURAL, PIN - 691537** **BY ADV SREERAJ M.D.** ## **RESPONDENT/S:** **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 06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3768 OF 2024 2 ## **O R D E R** The application filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.841/2024 of the Angamali Police Station, Ernakulam, registered against him for allegedly committing the offences punishable under Sections 406 and 409 of the Indian Penal Code. 3. The essence of the prosecution case is that: while the accused was working as an operating agent for Kottackal Agro Foods Corporation, the defacto complainant had handed over goods to the accused on the belief that he would distribute and sell the goods in Kollam. However, the accused, with an intention to cheat the defacto complainant, had committed criminal breach of trust by misappropriating the goods and caused a loss of Rs.25,00,000/- to the defacto complainant during the period from December 2023 till February 2024. Thus, the BAIL APPL. NO. 3768 OF 2024 3 accused has committed the above offences. 4. Heard; Sri. Sreeraj M.D., the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. There is no materials to attribute the offences under Sections 406 and 409 against the petitioner. The petitioner was only a wholesale distributor of the defacto complainant. There was no agreement between them. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner's custodial interrogation is necessary. The petitioner had committed criminal breach of trust and misappropriated the goods which were entrusted to him by the defacto complainant. The goods have to be recovered. Hence, the BAIL APPL. NO. 3768 OF 2024 4 ## application may be dismissed. 7. The prosecution allegation against the petitioner is that, while working as a sales agent for the defacto complainant, he misappropriated the goods during the period from December 2013 to February 2024 and committed breach of trust. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed 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) SCC 679). xxx xxx xxx xxx xxx 24. We have already held that the power to grant BAIL APPL. NO. 3768 OF 2024 5 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”. 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 BAIL APPL. NO. 3768 OF 2024 6 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. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record and on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not satisfied that the petitioner has made out convincing grounds to invoke the discretionary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. 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 an application for bail, the jurisdictional Court shall, consider the bail application BAIL APPL. NO. 3768 OF 2024 7 on its merits. If the 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** rkc/06.06.24 BAIL APPL. NO. 3768 OF 2024 8 ## **APPENDIX OF BAIL APPL. 3768/2024** ## **PETITIONER ANNEXURES** **Annexure A1** **THE TRUE COPY OF THE FIR IN CRIME NO. 0841 OF 2024 OF ANKAMALY POLICE STATION**