Asha v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946** **BAIL APPL. NO. 4164 OF 2024** **CRIME NO.302/2024 OF Melattur Police Station, Malappuram AGAINST THE ORDER/JUDGMENT DATED 25.04.2024 IN CRMC NO.498 OF 2024 OF DISTRICT COURT& SESSIONS COURT,MANJERI PETITIONER/S:** ## **ASHA** **AGED 50 YEARS D/O. RAJI. K.K, THAITHARAYIL VEEDU, NEAR PUTHENKULANGARA TEMPLE, THRIPPUNITHURA, EROOR POST, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 682306** ## **BY ADV V.T.MADHAVANUNNI** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 SIVADASAN ( SOUGHT TO BE IMPLEADED ) S/O.KRISHNAN, KUNNATH HOUSE, MELATTUR P.O., MALAPPURAM ( SOUGHT TO BE IMPLEADED )** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 4164 OF 2024 2 ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the 1[st] accused in Crime No.302/2024 of the Melattur Police Station, Malappuram, registered against the accused (two in number), for allegedly committing the offences punishable under Sections 420 and 406 of the Indian Penal Code (in short, 'IPC'). 3. The crux of the prosecution allegation is that: the accused, in furtherance of their common intention, deceived the defacto complainant by assuring him that they would arrange an employment visa for his son to go to Bahrain. Accordingly, the accused received an amount of Rs.4,70,000/- from the defacto complainant. However, they did not arrange the visa or return the money to the defacto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri.Madhavanunni V.T., the learned BAIL APPL. NO. 4164 OF 2024 3 counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against her. In fact, the petitioner is a Social Worker and a lady. She has no connection with the crime. All that the petitioner did was to introduce the defacto complainant to the 2[nd] accused. 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 opposed the application. She submitted that there are incriminating materials to establish the petitioner's involvement in the crime. An amount of Rs.4,70,000/- was transferred to the account of the petitioner. The petitioner is a member of group of visa fraudsters. The petitioner has used the symbol of the State Government and compelled the defacto complainant to make the payment. The BAIL APPL. NO. 4164 OF 2024 4 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 hamper the investigation of the case. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that, she along with the 2[nd] accused had assured the defacto complainant that they would secure an employment visa for his son on payment of Rs.4,70,000/-. Accordingly, the defacto complainant paid Rs.4,70,000/through Googlepay to the account of the petitioner. However, the petitioner did not secure the employment or return the money. 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 APPL. NO. 4164 OF 2024 5 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 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”. BAIL APPL. NO. 4164 OF 2024 6 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. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, that the petitioner’s custodial interrogation is necessary and that the investigation in the case is only at a nascent stage, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extraordinary BAIL APPL. NO. 4164 OF 2024 7 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. sd/- rkc/03.06.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 4164 OF 2024 8 ## **APPENDIX OF BAIL APPL. 4164/2024** ## **PETITIONER ANNEXURES** **Annexure A1** **A TRUE COPY OF THE ORDER IN CRL.M.C.NO.498/2024 OF THE SESSIONS COURT, MANJERI, DATED 25.04.2024**