Anisha v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 BAIL APPL. NO. 2368 OF 2024 ``` ``` CRIME NO.1455/2022 OF ANTHIKAD POLICE STATION, THRISSUR PETITIONER/SOLE ACCUSED: ``` ``` ANISHA AGED 34 YEARS D/O SIVANATHAN, KANJOOR HOUSE, NEAR KARADEVA TEMPLE, PORATHUR DESOM, ALAPPAD VILLAGE, THRISSUR THALUK,, PIN - 627821 ``` ``` BY ADVS. K.R.ARUN KRISHNAN DEEPA K.RADHAKRISHNAN JISSMON A KURIAKOSE SANAL C.S SIDHARTHAN M.T. RENJITH K.R. VISHAK K.V. ``` ## **`RESPONDENT:`** ``` 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 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.2368 of 2024 -:2:- Dated this the 1[st] 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 sole accused in Crime No.1455/2022 of the Anthikad Police Station, Thrissur, registered against her for allegedly committing the offences punishable under Sections 406 and 420 of the Indian Penal Code, 1860. 3. The essence of the prosecution case is that: the accused was an employee of Muthoot Finance, Puthenpeedika Branch. While she was working there, the defacto complainant had deposited Rs.4,00,000/and he received a Non Convertible Debenture (NCD) Certificate. On 05.02.2019, the accused induced the B.A.No.2368 of 2024 -:3:- defacto complainant to re-deposit the money and that she would pay interest on the deposit. However, the defacto complainant did not receive any interest on the deposit. It is then, that the defacto complainant realized that the accused had cheated him by fabricating the share certificate. Thus, the accused has committed the above offences. 4. Heard: Sri.K.R. Arun Krishnan, 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 her. She has been falsely implicated in the crime. The petitioner was only a paid employee of Muthoot Finance. The defacto complainant had received a Non - Convertible -:4:- ## B.A.No.2368 of 2024 Debenture Certificate from the finance company. The petitioner has no role in the crime. The petitioner's custodial is not and no interrogation necessary, recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. He submitted that while the petitioner was working in the finance company, she induced the defacto company to invest in a debenture, and received the money from him. She fabricated the debenture certificate and was paying the interest to the defacto complainant without the knowledge of the finance company. When she stopped the payment of interest, the defacto complainant came to learn of the crime. The petitioner is a person with criminal antecedents because she is involved in another crime of the same police station and two other crimes in Coimbatore. The B.A.No.2368 of 2024 -:5:- petitioner's custodial interrogation is necessary, and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would sabotage the investigation. Hence, the application may be dismissed. 7. On a consideration of the accusations levelled against the petitioner, it is seen that she induced the defacto complainant to make the above investment, without the knowledge of the finance company where she was working. Subsequently, she stopped paying the interest and refused to return the capital. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest B.A.No.2368 of 2024 -:6:- 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 xxxx xxx 10. xxx xxx xxx xxx xxx xxx xxx xxx xxx 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 B.A.No.2368 of 2024 ## -:7:- 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. ….. …...” ## 9. In **Jai Prakash Singh v. State of Bihar and** **Anr.** [(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 to misuse his liberty. 10. On an anxious consideration of the facts, the rival submissions made across the Bar and the B.A.No.2368 of 2024 -:8:- materials placed on record, especially taking into account the fact that the petitioner is a person with criminal antecedents, that the petitioner’s custodial interrogation is necessary, and that the recovery is to be effected, I am convinced that the petitioner has not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Section 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. 11. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, she 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 on its merits. If the B.A.No.2368 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/01.04.24 B.A.No.2368 of 2024 ## -:10:- ## **`APPENDIX OF BAIL APPL. 2368/2024`** ``` PETITIONER ANNEXURES ANNEXURE -1A TRUE COPY OF THE FIR DATED 15.12.2022 OF CRIME NO.1455/2022 OF ANTHIKAD POLICE STATION, THRISSUR DISTRICT ANNEXURE - 2A TRUE COPY OF ORDER DATED 13/03/2024 IN CRL.M.C. 281/2024 OF THE SESSIONS COURT, THRISSUR ```