BA 3172/20: Subhash Vasu & Suresh Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 07TH DAY OF JULY 2020 / 16TH ASHADHA, 1942** **Bail Appl..No.3172 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRL.MP NO.1465/2020 AND CRL.MP 1485/2020 OF DISTRICT & SESSIONS COURT, ALAPPUZHA DATED 21.5.2020 CRIME NO.1399/2019 OF Mavelikkara Police Station , Alappuzha** **PETITIONER/S/A1 & A2:** **1 SUBHASH VASU AGED 57 YEARS S/O.VASU, PUTHEN VEEDU, MANKUZHY MURI, BHARANIKKAVU VILLAGE, MAVELIKKARA, ALAPPUZHA690101.** **2 SURESH BABU AGED 64 YEARS S/O.A.G.BHARGAVAN, ALUMPARAMBIL HOUSE, KOTTACKAVU MURI, MAVELIKKARA VILLAGE, MAVELIKKARA, ALAPPUZHA-690101** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.V.C.SARATH SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SRUTHY N. BHAT SRI.P.M.RAFIQ** ## **RESPONDENT/S/COMPLAINANT & STATE & DEFACTO COMPLAINANTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031** BA 3172/20 2 ***ADDL.R2 SUNIL MUNDAPALLY ADVOCATE, ADMINISTRATOR, SNDP YOGAM, MAVELLIKARA UNION.** ***ADDL.R3 DAYAKUMAR, AGED 45 YEARS S/O K BALAN, RESIDING AT KALEECKAL GURUSREE MURI, THRIPPERUNTUVA VILLAGE, MANNAR, ALAPPUZHA, KERALA, INDIA.** ***ADDL.R2 & R3 ARE IS IMPLEADED AS PER ORDER DATED 08.06.2020 IN CRL.M.A. NO. 1/2020** **R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION R2 BY ADV. SRI.M.KIRANLAL R2 BY ADV. SRI.MANU RAMACHANDRAN R2 BY ADV. SRI.R.RAJESH (VARKALA) R2 BY ADV. SHRI.SAMEER M NAIR ADDL.R2-3 BY ADV. T.S.SARATH R4 BY ADV. V.MAHENDRANATH** ## **OTHER PRESENT:** ## **SRI.C.K.SURESH SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08.06.2020, THE COURT ON 07.07.2020 PASSED THE FOLLOWING:** BA 3172/20 3 ## **ASHOK MENON, J. -----------------------------------BA No.3172 of 2020** ------------------------------------- **Dated this the 7[th] day of July, 2020** ## **O R D E R** This is a petition seeking anticipatory bail filed under Section 438 Cr.PC. 2. Serious misappropriation and criminal breach of trust were alleged in the affairs of SNDP Union at Mavelikkara. WP(C) No.31710/2014(K) was filed before this Court and on 15.01.2016, this Court directed the Police to investigate the allegations known as Micro Finance Scam, and in consequence to that, Crime No.1399/2019 was registered at the Mavelikkara Police Station and the Police commenced the investigation. 3. The petitioners herein are accused 1 and 2. They approached this Court by filing Crl.MC No.6598/2019 to quash the proceedings against them under Section 482 Cr.PC. There was an interim order to stay the investigation in which this Court directed the investigating officer to arrest the petitioners only after issuing notice under Section 41A Cr.PC, vide order BA 3172/20 4 dated 20.02.2020. In view of the said order, the investigating officer issued notice to the petitioners on 17.3.2020 and immediately, the petitioners approached the Sessions Court, Alappuzha and filed Crl.MP No.1485/2020 seeking anticipatory bail under Section 438 Cr.PC. The application was dismissed by the Court on 21.5.2020 vide Annexure-A and on the very next day, they filed the present bail application seeking anticipatory bail. 4. The prosecution case in brief is that the petitioners who were at the helm of affairs of the SNDP Union Mavelikkara, hatched conspiracy together with the remaining accused, totalling 10 in number, to misappropriate funds belonging to the Union and committed criminal breach of trust with regard to the amounts over which they had dominion and were entrusted to them. They also dishonestly induced the defacto complainants who had got themselves impleaded as additional respondents 2 and 3, to deliver amounts and the alleged embezzlement to the tune of Rs.11,00,65,809/- for which they also forged documents BA 3172/20 5 and used them as genuine, knowing them to be forged. 5. There are various heads of accounts in which the petitioners and the other co-accused had allegedly committed misappropriation and criminal breach of trust. A break up is given as thus: - (a) Rs.7,13,00,000/- was misappropriated from out of the principal amount and interest of the micro finance scheme. - (b) Rs.1,30,000/- was allegedly misappropriated from the funds meant for renovation of the Union building. - (c) Rs.33,00,000/- was allegedly misappropriated from the course fee intended for pre-marital counselling. - (d) Rs.6,65,809/- was misappropriated from the annual income and expenditure account. - (e) Rs.1,00,00,000/- was misappropriated under the guise of demonitisation. - (f) Rs.3,00,000/- was misappropriated from the illegal sale of school buses. BA 3172/20 6 - (g) Rs.15,00,000/- was collected by the accused as illegal gratification for appointment of a peon. - (h) Rs.1,00,00,000/- was misappropriated under the guise of conducting Sree Narayana Divya Probhodhana Dyana Yajnam. 6. The offences alleged are under Sections 120B, 406, 408, 420 and 471 read with Section 34 IPC. The petitioners seek pre-arrest bail on the ground that they are innocent and that the allegations are vexatious, with ulterior motive and politically motivated. 7. The petitioners admit of having received notice under Section 41A Cr.PC directing them to appear before the investigating officer on 17.3.2020. Notice was not willfully avoided, state the petitioners. But they apprehended that in the event of their arrest, they would be insulted, humiliated and even tortured by the investigating officer and hence, they immediately approached the Sessions Court for anticipatory bail and on its dismissal, they approached this Court. It is stated BA 3172/20 7 that custodial interrogation of the petitioners may not serve any purpose other than humiliating them. They were and are always willing to co-operate with the investigation and pray that they may be released on pre-arrest bail on any condition that may be imposed by this Court. 8. Heard the learned Senior Counsel, Sri. P. Vijayabhanu, appearing for the petitioners, the learned Senior Public Prosecutor, Sri.C.K.Suresh, as also the learned counsel appearing for the defacto complainants, Adv.T.S.Sarath, who have got themselves impleaded as additional respondents 2 and 3. 9. The learned Senior Counsel submits that the only grave offence alleged against them is one under Section 471 IPC. All the remaining offences alleged against them would come within the purview of offences punishable with sentence of imprisonment up to 7 years. According to him, Section 471 IPC was added deliberately to enhance the gravity of the alleged crime. The learned Senior Counsel submits that the petitioners BA 3172/20 8 are aged 57 and 64 years, respectively. They have a personal place of abode, do not have any criminal antecedents, and are willing to co-operate with the investigation. 10. The Full Bench of this Court has in the various Orders in W.P.C 9400/2020 ordered that interim bail shall be granted to all under trial remand prisoners incarcerated in Jail within the State facing accusation of having committed offences punishable up to 7 years imprisonment or less with or without fine, and from this direction only those prisoners who are having criminal antecedents, previous convictions or are habitual offenders and those undergoing trial or remanded in custody are excluded. Subsequent orders were also passed by the Full Bench extending the orders granting interim bail to the prisoners and the accused, considering the fact that the lock down following the pandemic situation was extended and the situation of Covid19 pandemic continues to be grim. The learned Senior Counsel Sri.P.Vijayabhanu, therefore, submits that the petitioners who are aged men liable to be exposed to the pandemic, run the risk BA 3172/20 9 of getting infected, and may not be incarcerated for the purpose of the investigation, and hence, their claim for pre-arrest bail is perfectly justified. 11. The learned Senior Public Prosecutor, Sri.C.K.Suresh, and Sri.T.S.Sarath appearing for the defacto complainants have very serious objection regarding the release of the petitioners on pre-arrest bail. It is pointed out that there is adequate materials before this Court to indicate that the petitioners have been skulking from subjecting themselves to interrogation. They did not respond to the notice issued to them under Section 41A Cr.PC and that is the main reason why the learned Sessions Judge dismissed their application for pre-arrest bail. 12. In **Chidambaram P. v. Directorate of Enforcement [2019 KHC 6886 : AIR 2019 SC 4198]** , the Honourable Apex Court has held that anticipatory bail is not to be granted as a matter of rule and it has to be granted only when court is convinced that exceptional circumstances exist to resort to that extraordinary remedy, which has to be exercised only sparingly BA 3172/20 10 and it is also observed that economic offences stand as a different class as they affect the economic fabric of the society. The question that arose for consideration in that appeal was whether the court can/cannot look into the documents/materials produced before the court, unless the accused was earlier confronted with those documents/materials and whether the court is called upon to hold mini enquiry during the intermediary stage of investigation by examining whether the questions put to the accused are 'satisfactory' or 'evasive' etc. The Honourable Apex Court was considering the case of money laundering in which the former Finance Minister was involved and held that delicate balance is required to be established between the rights of safeguarding personal liberty of an individual with the societal interest and therefore, refusal to grant anticipatory bail would not amount to denial of rights conferred upon the appellant under Article 21 of the Constitution of India. It was also observed that when the contention of the Prosecution is that answers given by the accused during interrogation was evasive BA 3172/20 11 and that custodial interrogation is necessary, such investigation is purely within the domain of the investigating officer. 13. Coming back to the facts of this case, it has to be observed that the alleged swindling, misappropriation and breach of trust pertain to a fairly long period extending from 2006 to 2019, when the petitioners and others were at the helm of affairs of the Union and the prosecution insists for custodial interrogation so that they could discover the documents pertaining to the alleged misappropriation from the accused, who according to the prosecution had a major role in the said act of swindling. As pointed out by the learned Senior Counsel, Section 471 IPC is the only Section which appears to be grave enough to incarcerate the petitioners for custodial interrogation. Certain receipts were allegedly issued as genuine for the purpose of the said misappropriation. The petitioners would contend that they have a good case sufficient even to quash the proceedings under Section 482 Cr.PC and the same is under consideration of this Court. BA 3172/20 12 14. Considering the circumstances in this case and the fact that the order of this Court in the Writ Petition was made as early as in 2016 and yet, the crime was registered only in 2019 and that the alleged crime pertains to the period 2006-2019, the need for the petitioners being arrested was not felt by the investigators till recently. Considering the present pandemic situation, it would not be appropriate to confine the petitioners to Jail at the risk of their being infected and also infecting the others. Conjunction of the Jails is what is intended by the decision of the Full Bench referred to above. The allegedly forged documents could be recovered and sent for examination by experts, even without incarcerating the petitioners. Regarding the rest, it is all depending on documentary evidence. The petitioners have offered to co-operate with the investigation. The fact that they did not appear in pursuance to notice under Section 41A Cr.PC is no reason to discard their application for bail, because immediately on receipt of that notice, anticipating that they are likely to be arrested, the petitioners approached BA 3172/20 13 the Sessions Court for anticipatory bail and on rejection of that before this Court. There is no reason to assume that the petitioners were deliberately avoiding interrogation. All that the petitioners require is a prevention from being incarcerated in Jail. They could without any doubt be subjected to interrogation without their being arrested. The petitioners do not have any criminal antecedents. They are not likely to abscond and shy away from interrogation. **Chidambaram P.** 's case (supra) is one that comes under serious fraud economic offence being investigated by the Directorate of Enforcement. The allegation in the instant case is that of misappropriation, cheating and forgery. Hence, I find that the petitioners are entitled to prearrest bail. 15. In the result, the Bail Application is allowed and the petitioners are directed to surrender before the investigating officer within two weeks. They shall be subjected to interrogation and in the event of their being arrested, they shall be released on bail on execution of bond for Rs.1,00,000/- BA 3172/20 14 (Rupees One lakh only) each with two solvent sureties each for the like amount to the satisfaction of the investigating officer, on the following further conditions:- (i) They shall not tamper with evidence or influence or intimidate witnesses. (ii) They shall appear before the investigating officer on every Saturday between 9 a.m. and 12 noon and co-operate with the investigation for a period of three months or till the final report is filed, whichever is earlier. (iii) They shall not leave the jurisdiction of their residence without informing the jurisdictional court or the investigating officer. (iv) They shall surrender their passports before the investigating officer and if they do not hold a passport, they shall file an affidavit to that effect. The passports so produced by the petitioners before the investigating officer shall be produced before the jurisdictional court. (v) They shall not get involved in any similar offence BA 3172/20 15 during the currency of the bail. In case of breach of any of the above bail conditions, the prosecution is at liberty to approach the jurisdictional court for cancellation of the bail. Sd/- **ASHOK MENON JUDGE** jg