Anoop Prakasan v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 731 OF 2024 ``` ``` CRIME NO.11/2024 OF KEEZHVAIPUR POLICE STATION, PATHANAMTHITTA ``` ## `PETITIONER:` ``` ANOOP PRAKASAN AGED 38 YEARS S/O PRAKASAN I.K., IKKUZHY KUNTHARAYIL, MUNDIAPPALLY P.O., THIRUVALLA, KAVIYOOR, PATHANAMTHITTA, PIN – 68958 ``` ``` BY ADVS.M.R.SASITH R.K.CHIRUTHA NEELANJANA NAIR ANJANA SURESH.E REJINA R.THAJ NANMA.B.B ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` PP SMT SHYNI V O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.731/2024 -:2:- Dated this the 8[th] day of February,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 third accused in Crime No.11/2024 of the Keezhvaipur Police Station, Pathanamthitta, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 420, 323 and 506 of the Indian Penal Code, 1860, and Section 66 (E) of the Information Technology Act,2000. 3. The gist of the prosecution case is that: with an intention to deceive and defraud the de-facto complainant for profit, the second accused, who is a marriage broker by profession, introduced the first accused to the de-facto complainant, who is a widower, and proposed to get married. Subsequently, the first B.A.No.731/2024 -:3:- accused started communicating with the de-facto complainant and showed her interest in getting married. Thereafter, the accused made the de-facto complainant to transfer Rs.21,00,000/- from his bank account to the account of the first accused. The de-facto complainant also purchased a scooter for the first accused and bought five sovereigns gold ornaments. Thereafter, on 28.11.2022, the accused called the de-facto complainant to the residence of the first accused, stripped him naked, took his nude photographs, and circulated the same. Then, the accused 1 to 4 assaulted the de-facto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri.Sasith. M.R, the learned counsel appearing for the petitioner and Smt. Shyni V.O., the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner B.A.No.731/2024 -:4:- submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no specific overt act alleged against the petitioner. It is on mutual consent that the first accused and the de-facto complainant decided to get married. The allegations in the complaint filed before the jurisdictional magistrate will substantiate that the first accused and the de-facto complainant were on cordial terms. Subsequently, the de-facto complainant has made a false complaint against the accused. The petitioner has no complicity in the crime. At any rate, the petitioner’s custodial interrogation is not necessary. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that the accused 1 to 4 have cheated the de-facto complainant. They have, thereafter, taken the nude the photographs B.A.No.731/2024 -:5:- of the de-facto complainant and circulated the same. The accused 1 to 4 have assaulted the de-facto complainant and shared the money. The petitioner’s custodial interrogation is necessary and recovery is to be effected. The investigation in the case is at a nascent stage. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. 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 B.A.No.731/2024 -:6:- (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 B.A.No.731/2024 -:7:- 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 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. B.A.No.731/2024 -:8:- 8. 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. 9. After bestowing my anxious consideration of the facts, materials placed on record, the rival submissions made across the Bar, and on comprehending the nature, gravity and seriousness of the allegations made in the complaint and in Annexure-A1 FIR, that an amount of Rs.21,00,000/was transferred from the bank account of the de-facto B.A.No.731/2024 -:9:- complainant to the bank account of the first accused, that the accused had taken the nude photographs of the defacto complainant, that they jointly assaulted the de-facto complainant, that the petitioner’s custodial interrogation is necessary 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 Section 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. 10. 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, untrammelled by any observations in this order, B.A.No.731/2024 -:10:- 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** DST/08.02.24 //True copy// P.A. To Judge