Anoop K. Madhav v. State of Kerala and Sajeev Antony

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 9655 OF 2023 ``` ``` CRIME NO.851/2023 OF MEDICAL COLLEGE POLICE STATION, THRISSUR ``` ## `PETITIONER/ACCUSED NO.2:` ``` ANOOP K. MADHAV AGED 25 YEARS S/O. RAVEENDRAN, RESIDING AT KALARIKKAL HOUSE, KULAPPULLY, SHORNUR, PALAKKAD, PIN - 679122 BY ADVS. V.JOHN SEBASTIAN RALPH GIRIDHAR KRISHNA KUMAR VISHNU CHANDRAN RALPH RETI JOHN APPU BABU VISHNUMAYA M.B. APOORVA RAMKUMAR GEETHU T.A. ``` ## `RESPONDENTS/COMPLAINANT:` ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 SAJEEV ANTONY RESIDING AT AINIKKAL HOUSE KUNDOOR, MALA, THRISSUR IS IMPLEADED AS ADDL. R2 AS PER ORDER DATED 21/11/2023 IN CRL.MA. 1/2023. BY ADVS. ANOOP V.NAIR TANOOSHA PAUL ROHITH C. AVANTHIKA R. ``` B.A.No.9655 of 2023 -:2:- ## `OTHER PRESENT:` ``` BY SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.9655 of 2023 ## -:3:- ## Dated this the 24[th] day of January, 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 2[nd] accused in Crime No.851/2023 of the Medical College Police Station, Thrissur, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 406, 408, 420 and 201 r/w Section 34 of the Indian Penal Code, 1860. 3. The gist of the prosecution case is that: between the period from 30.11.2022 to 30.09.2023, the accused 1 and 2, who were working as staff in Hotel Way Lord in Tirur, wrongly entered the stock of alcohol in the computer system, manipulated the stock, and sold more than what was accounted for, and thereby, causing a loss B.A.No.9655 of 2023 -:4:- of Rs. 49,21,471.42/- to the establishment. The accused 1 and 2, along with the accused 3, had also deleberately destroyed the hard disk in the system containing the CCTV footages, installed fixed in the establishment. Thus, the accused have committed the above offences. 4. Heard; Sri. John Sebastian Ralph, the learned counsel appearing for the petitioner, Smt. Neema T.V., the learned Senior Public Prosecutor appearing for the respondent and Smt. Tanoosha Paul, the learned counsel appearing for the 2[nd] respondent/de facto complainant. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner is only a 25 years old youth, who working as an accountant in the establishment. He followed the instructions of the first accused/ manager of the establishment. The petitioner has not indulged in any criminal act. The custodial interrogation of the petitioner is not necessary. The investigation in the case is almost complete. Hence, an B.A.No.9655 of 2023 ## -:5:- order of pre-arrest bail may be passed. 6. The learned Public Prosecutor strenuously opposed the application. She submitted that it was the accused 1 to 3, in prosecution of their common intention, who have misappropriation of Rs.49,21,471.42/-. The accused, in order to destroy the evidence, also cleverly destroyed the hard disk in the system containing the CCTV footages. The petitioner’s custodial interrogation is necessary for the proper and fair investigation of the case, and recovery is to be effected. If the petitioner is let off on bail, there is every likelihood of him tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed. 7. The learned counsel appearing for the 2[nd] respondent also reiterated very same contentions of the learned Public Prosecutor. She submitted that the subsequent verification of the stock revealed that the loss is more than Rs.95 lakh. Moreover, due to the act of the accused, there is every likelihood of action being B.A.No.9655 of 2023 ## -:6:- taken against the 2[nd] respondent by the Government for violation of the rules. Hence, the application may be dismissed. 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 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; B.A.No.9655 of 2023 -:7:- (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 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 B.A.No.9655 of 2023 ## -:8:- 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 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. B.A.No.9655 of 2023 ## -:9:- 10. After bestowing my anxious consideration to the materials placed on record, particularly taking into account the nature, gravity, and seriousness of the offence alleged against the petitioner, that the custodial interrogation of the petitioner is necessary, that the accused had destroyed the hard disk in the system containing the CCTV footages, that the investigation in the case is only at the nascent stage, and that the recovery is to be effected, I am of the definite view that the petitioner is not entitled 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. Consequently, the bail application is dismissed. 11. 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 B.A.No.9655 of 2023 ## -:10:- application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. 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** mtk/24.01.24 B.A.No.9655 of 2023 ## -:11:- ## `APPENDIX OF BAIL APPL. 9655/2023` ``` PETITIONER ANNEXURES ``` ``` Annexure 1TRUE COPY OF THE FIR IN CRIME NO. 851/2023 OF MEDICAL COLLEGE POLICE STATION, THRISSUR DISTRICT ``` ``` RESPONDENT ANNEXURES ``` ``` Annexure R2(a)True copy of the stock valuation(Consolidated) as on date 30.09.2023 issued by the internal auditor Annexure R2(b)True copy of the details of the proper stock as on date 30.11.2022 Annexure R2(c)True copy of the daily sales statement physically verified by the 2nd respondent dated 1.10.2023 and 26.09.2023 in which variation is found Annexure R2(d)True copy of the last statement of stock in the month of September 2023 in which variation is found ```