Ashik Ali Azar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 BAIL APPL. NO. 3134 OF 2023 ``` ``` CRIME NO.1295/2022 OF TOWN WEST POLICE STATION, THRISSUR ``` ## **`PETITIONER/ACCUSED NO.4:`** ``` ASHIK ALI AZAR AGED 38 YEARS KARUVATH PALLATH, MUKATTA, NILAMBUR R S P O, MALAPPURAM DISTRIC, PIN - 679330 BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL R.GAYATHRI M.MAHIN HAMZA ALWIN JOSEPH ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` - **`2 THE STATION HOUSE OFFICER`** ``` THRISSUR WEST POLICE STATION, OUTPOST ROAD, KALYAN NAGAR, AYYANTHOLE, THRISSUR DISTRICT, PIN - 680003 ``` ## **`BY SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.3134 of 2023 ## -:2:- Dated this the 5[th] day of March, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail. 2. The petitioner is the fourth accused in Crime No.1295/2022 of the Town West Police Station, Thrissur, registered against the accused for allegedly committing the offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code, 1860. 3. The essence of the prosecution case is that: the accused, in furtherance of their common intention, made the defacto complainant believe that they are conducting an establishment named ‘My Club Traders’, ‘Grow Line Traders’, and also the sister concerns, ## B.A.No.3134 of 2023 ## -:3:- namely ‘Toll Deal Ventures’, Future Trade Link', and ‘Princess Gold', with all the requisite licenses and permissions. They assured the defacto complainant that, if he invested in the above establishments, they would give him a profit of 24% per month or his investment would be doubled within one year. Believing the assurance made by the accused, the defacto complainant invested Rs.40,00,000/- in cash and Rs.55,80,000/- through bank transfer from 03.11.2021 onwards. However, the accused failed to pay profit to the defacto complainant or return the principal amount. Thus, the accused have committed the above offences. 4. Heard; Sri.P. Mohamed Sabah, the learned counsel appearing for the petitioner and Smt.Seetha.S., the learned Senior Public Prosecutor appearing for the respondents. ## B.A.No.3134 of 2023 -:4:- 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime. A reading of Annexure A1 FIR would substantiate that the offences under Sections 406 and 420 of the IPC will not be attracted. In any given case, the petitioner's custodial is not and no interrogation necessary, recovery is to be effected. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and also cooperate with the investigation. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the applications. She submitted that in a batch of cases filed by a similar situated accused, who were also in charge of the above establishments, this Court has already dismissed the bail applications. She referred to ## B.A.No.3134 of 2023 ## -:5:- the common order in B.A.Nos. 2008, 2017, and 2024 of 2022 and 3572/2023 and contended that all the above applications arise out of similar transactions. This Court found that the custodial interrogation of the accused was necessary and recoveries have to be effected. Consequently, the applications were dismissed. The petitioner is at par with the accused in the above applications. The petitioner has committed a grave economic offence. The investigation in the case is in progress. Due to the magnitude of the crime, the investigation has been transferred to the Crime Branch of Thrissur. If the petitioner is granted an order of prearrest bail, it would hamper with the full and proper investigation of the case. Hence, the application may be dismissed. 7. In **Siddharam Satlingappa Mhetre v. State** **of Maharashtra** [(2011) 1 SCC 694] the Hon’ble -:6:- ## B.A.No.3134 of 2023 ## 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; (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 ## B.A.No.3134 of 2023 ## -:7:- 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 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.3134 of 2023 ## -: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. 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 ## B.A.No.3134 of 2023 ## -:9:- 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 convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 10. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submission made across the Bar, and on comprehending the nature, gravity, and seriousness of the economic offences alleged against the petitioner, that the investigation in the case is still in progress, that the custodial interrogation of the petitioner is necessary, and that the petitioner is a person with criminal antecedents `,` I am convinced that the B.A.No.3134 of 2023 ## -:10:- petitioner has not made out exceptional grounds to invoke the extraordinary 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/- **C.S.DIAS,JUDGE** mtk/05.03.24 B.A.No.3134 of 2023 -:11:- ## **`APPENDIX OF BAIL APPL. 3134/2023`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE 1 ``` ``` TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 1295/2022 OF THRISSUR WEST POLICE STATION, THRISSUR DISTRICT ```