Bail Applications Nos. 432/2024 and 440/2024: Sanju C.S and Shinil M V v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 432 OF 2024 ``` ``` CRIME NO.642/2023 OF THADIYITTAPARAMBA POLICE STATION, ERNAKULAM ``` ``` PETITIONER: ``` ``` SANJU.C.S AGED 44 YEARS W/O UNNIKRISHNAN, VADAKKEPPURAM, MALEKKAPPADY, EDATHALA.P.O, ALUVA, ERNAKULAM, PIN – 683561 ``` ``` BY ADV V.K.DINESH KUMAR ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, THADIYITTAPPARAMBU POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2024, ALONG WITH BAIL APPL.440/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.432 & 440/2024 -:2:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 440 OF 2024 ``` ``` CRIME NO.642/2023 OF THADIYITTAPARAMBA POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER IN CRMC 3651/2023 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ``` ## `PETITIONER:` ``` SHINIL M V AGED 42 YEARS S/ O VELAYUDHAN, MADATHILAKAM, KEEZHMADU, ALUWA EAST, ERUMATHALA.P.O, VAZHAKKULARN, ERNAKULAM, PIN – 683112 ``` ``` BY ADV SANEL CHERIAN ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, THADIYITTAPPARAMBU POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2024, ALONG WITH BAIL APPL..432/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.432 & 440/2024 -:3:- Dated this the 15[th] day of February,2024 ## **C O M M O N O R D E R** 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 the applications are the accused Nos.1 & 2 in Crime No.642/2023 of Thadiyittaparamba Police Station, Ernakulam, registered against the accused (three in number), for allegedly committing the offences punishable under Sections 420, 465, 408 & 471 of the Indian Penal Code, 1860. 3. The crux of the prosecution case is that: the accused in furtherance of their common intention, to deceive the son of the de-facto complainant offered him an employment as an Attender in Indian Railways and issued a false letter. They received an amount of Rs.5,00,000/- from the de-facto complainant on several B.A.Nos.432 & 440/2024 -:4:- occasions. However, they did not provide the job or return the money. Thus, the accused have committed the above offences. 4. Heard; Sri `.` V.K.Dinesh Kumar, and Sri.Sanel Cherian, the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. A reading of Annexure-I First Information Report [FIR] would establish that the offence alleged against the petitioners will not be attracted. They have been falsely implicated in the crime. It was the third accused who who had received the money and gave assurance to the de-facto complainant. At any rate, the custodial interrogation of the petitioners is not necessary and no recovery is to be effected. Hence, the applications may B.A.Nos.432 & 440/2024 -:5:- be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioners have cheated the de-facto complainant by assuring them that they would secure an employment for his son in the Railway. They collected money on different occasions from the de-facto complainant. The custodial interrogation of the petitioners is necessary and the recovery is to be effected. The investigation in the case is only at its nascent stage. The petitioners’ application for pre-arrest bail has already been dismissed by the Court of Session as per Annexure-II order. Hence, the applications may be dismissed. 7. On an analysis of the materials placed on record, it is seen that there is a specific overt act alleged against the petitioners alleging that they have received money from the de-facto complainant assuring his son an employment in the Railway. By B.A.Nos.432 & 440/2024 -:6:- Annexure-II order, the Court of Session taking into account the gravity of the offence and that the petitioners’ custodial interrogation is necessary, dismissed their applications. 8. 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; (ii) The antecedents of the applicant including the fact B.A.Nos.432 & 440/2024 -:7:- 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; (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. B.A.Nos.432 & 440/2024 -:8:- **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. 9. In **Jai Prakash Singh v. State of Bihar and Anr.** [(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. 10. After bestowing my anxious consideration to B.A.Nos.432 & 440/2024 -:9:- the facts, the materials placed on record, the rival submission made across the Bar, and on comprehending the nature, gravity, and seriousness of the offence alleged against the petitioners, that the investigation in the case is only at its nascent stage, that the custodial interrogation of the petitioners is necessary and the recovery is to be effected, I am of the definite view that the petitioners have not made out any exceptional circumstances entitling them to invoke the extra-ordinary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that these are not fit cases to grant orders of pre-arrest bail. Consequently, the bail applications are dismissed. 10. Nonetheless, I direct that, if the petitioners 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 B.A.Nos.432 & 440/2024 -:10:- move an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application 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** DST/15.02.24 //True copy// P.A. To Judge