Anumol Joseph and Mercy Varghese v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` # **`WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 BAIL APPL. NO. 11619 OF 2023`** ``` CRIME NO.2544/2023 OF TOWN EAST POLICE STATION, THRISSUR ``` ## **`PETITIONERS:`** ``` 1ANUMOL JOSEPH AGED 40 YEARS D/O P.T JOSEPH, PANTHALANIKRAL HOUSE, KADAMKUZHI DESOM, KUNDUKAD P.O, THRISSUR DISTRICT, PIN - 680028 2MERCY VARGHEESE AGED 51 YEARS W/O VARGHEESE, AKRARA HOUSE, MALAKRA DESOM, MANALITHARA P.O, THRISSUR DISTRICT, PIN - 680589 BY ADVS. AMAL JEES ALEX P.A.GIREESH KUMAR ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICER, THRISSUR EAST POLICE STATION, NEW PATTALAM ROAD SAKTHAN THAMPURAN NAGAR, VELLIYANNUR, THRISSUR P.O, THRISSUR DISTRICT, KERAIA, PIN – 680001 ``` ``` SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2024, ALONG WITH Bail Appl..11621/2023, 11625/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.11619 of 2023 and con.cases -:2:- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ## **`WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 BAIL APPL. NO. 11621 OF 2023`** ## **`CRIME NO.2524/2023 OF TOWN EAST POLICE STATION, THRISSUR PETITIONERS:`** ``` 1ANUMOL JOSEPH AGED 40 YEARS D/O P.T JOSEPH, PANTHALANIKKAL HOUSE, KADAMKUZHI DESOM, KUNDUKAD P.O, THRISSUR DISTRICT, PIN - 680028 2MERCY VARGHEESE AGED 51 YEARS W/O VARGHESE, AKKARA HOUSE, MALAKKA DESOM, MANALITHARA P.O, THRISSUR DISTRICT, PIN - 680589 BY ADVS. AMAL JEES ALEX P.A.GIREESH KUMAR ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICER, THRISSUR EAST POLICE STATION, NEW PATTALAM ROAD SAKTHAN THAMPURAN NAGAR, VELLIYANNUR, THRISSUR P.O, THRISSUR DISTRICT, KERALA, PIN – 680001 ``` ``` SR.PUBLIC PROSECUTOR SMT. SEETHA S. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2024, ALONG WITH Bail Appl..11619/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.11619 of 2023 and con.cases -:3:- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ## **`WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 BAIL APPL. NO. 11625 OF 2023`** ## **`CRIME NO.2321/2023 OF TOWN EAST POLICE STATION, THRISSUR PETITIONERS:`** ``` 1ANUMOL JOSEPH AGED 40 YEARS D/O P.T JOSEPH, PANTHALANIKKAL HOUSE, RADAMKUZHI DESOM, KUNDUKAD P.O, THRISSUR DISTRICT, PIN - 680028 2MERCY VARGHEESE AGED 51 YEARS W/O VARGHESE, AKKARA HOUSE, MALAKRA DESOM, MANALITHARA P.O, THRISSUR DISTRICT, PIN - 680589 BY ADVS. AMAL JEES ALEX P.A.GIREESH KUMAR ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICER, THRISSUR EAST POLICE STATION, NEW PATTALAM ROAD SAKTHAN THAMPURAN NAGAR, VELLIYANNUR, THRISSUR P.O, THRISSUR DISTRICT, KERALA, PIN – 680001 ``` ``` SR.PUBLIC PROSECUTOR SMT. NEEMA T.V. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2024, ALONG WITH Bail Appl..11619/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.11619 of 2023 and con.cases -:4:- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 BAIL APPL. NO. 11626 OF 2023 ``` ## **`CRIME NO.2529/2023 OF TOWN EAST POLICE STATION, THRISSUR`** ## **`PETITIONERS:`** ``` 1ANUMOL JOSEPH AGED 40 YEARS D/O P.T JOSEPH, PANTHALANIKKAL HOUSE, KADAMKUZHI DESOM, KUNDUKAD P.O, THRISSUR DISTRICT., PIN - 680028 2MERCY VARGHEESE AGED 51 YEARS W/O VARGHESE, AKRARA HOUSE, MALAKRA DESOM, MANALITHARA P.O, THRISSUR DISTRICT, PIN - 680589 BY ADVS. AMAL JEES ALEX P.A.GIREESH KUMAR ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY STATION HOUSE OFFICER, THRISSUR EAST POLICE STATION, NEW PAITALAM ROAD SAKTHAN THAMPURAN NAGAR, VELLIYANNUR, THRISSUR P.O, THRISSUR DISTRICT, KERALA, PIN – 680001 ``` ``` SR.PUBLIC PROSECUTOR SMT. NEEMA T.V. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2024, ALONG WITH Bail Appl..11619/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.11619 of 2023 and con.cases -:5:- ## **COMMON ORDER** Dated this the 31[st] day of January, 2024 The applications are filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for orders of pre-arrest bail. 2. The petitioners in these bail applications are the accused in Crime Nos.2544, 2524, 2321 and 2529 of 2023 of the Town East Police Station, Thrissur, registered against them for allegedly committing the offences punishable under Sections 406, 420 and 34 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The gist of the prosecution case in all the four application is that: the accused are running a travel agency named, ‘M/s Wings HR Solutions’ extending consultancy services on immigration and visa services. The first petitioner is the head of operation and the second petitioner is the marketing head of the firm. B.A.Nos.11619 of 2023 and con.cases -:6:- The de facto complainants had approached accused to secure employment in the Republic of Italy. Although the accused had collected money from the de facto complainants, they did not secure the visa or return the amount. Thus, the accused have committed the above offences. 4. Heard; Sri.Amal Jees Alex, the learned counsel appearing for the petitioners and Sri. C.S, Hrithwik, Smt. Seetha S. and Smt. Neema T.V. the learned Senior Public Prosecutors appearing for the respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The petitioners are law abiding citizen. The petitioners had only facilitated the processing of the visas through the Embassy/Consulate of the Republic of Italy. It is only because the de facto complainants did not have B.A.Nos.11619 of 2023 and con.cases -:7:- adequate qualifications/eligibility, their visa applications were rejected, for which the petitioners cannot be found fault with. The petitioners are ready to co-operate with the investigation and willing to abide by any stringent condition that may be imposed by this Court. Hence, the applications may be allowed. 6. The learned Public Prosecutors vehemently opposed the applications. They contended that the petitioners have committed the offences under Sections 420 and 406 of IPC, by collecting money from the de facto complaints assuring them to secure employment visas in Italy. On the basis of the said assurance, the de facto complainant parted with their hard-earned money. The petitioners have made unlawful enrichment by making false promises. The petitioners custodial interrogation is necessary and recovery is to be effected. The investigation is in B.A.Nos.11619 of 2023 and con.cases -:8:- progress. Hence, the applications 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 (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.Nos.11619 of 2023 and con.cases -:9:- (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; B.A.Nos.11619 of 2023 and con.cases -:10:- (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. 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 B.A.Nos.11619 of 2023 and con.cases -:11:- 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.In **P. Chidambaram v. Directorate of** ## **Enforcement** [(2019) 9 SCC 24], the Hon'ble Supreme Court has observed thus: “69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is B.A.Nos.11619 of 2023 and con.cases ## -:12:- convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 10. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the nature, gravity, and seriousness of the offences alleged against the petitioners, which are economic offences, that the petitioners have criminal antecedents as they are involved in five other cases, that the investigation in the cases is in progress, that the custodial interrogation of the petitioners is necessary and that recovery is to be effected, I am of the definite view that the petitioners have not made out any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that these are not fit cases to grant the petitioners orders of pre-arrest bail. Consequently, the bail applications are dismissed. Nonetheless, I direct that, if the petitioners B.A.Nos.11619 of 2023 and con.cases -:13:- surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail applications on its merits and as expeditiously as possible. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. Sd/- **C.S.DIAS,JUDGE** rmm/1/2/2024