Binesh K.K. v. State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, ``` ## **`1945`** ``` BAIL APPL. NO. 425 OF 2024 ``` ``` AGAINST THE ORDER IN CR 552/2023 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA CR 552/2023 OF JUDICIAL MAGISTRATE OF FIRST ``` ``` CLASS ,SULTHANBATHERY ``` ## **`PETITIONER/ACCUSED:`** ``` BINESH K.K. AGED 39 YEARS SON OF KESAVAN, KURANJUVAYAL HOUSE, VELIYAMBAM P.O., PULPALLY, SULTHANBATHERY TALUK, WAYANAD DISTRICT, PIN - 673579 ``` ``` BY ADV S.M.PRASANTH ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER, PULPALLY POLICE STATION, PULPALLY, WAYANAD DISTRICT, PIN - 673579 3 THE ASSISTANT ENGINEER REPRESENTING THE KERALA STATE ELECTRICITY BOARD ELECTRICAL SECTION, KSEB, PADICHIRA, PULPALLY, WAYANAD, KERALA, INDIA, IMPLEADED AS ADDL R3 AS PER ORDER DATED 12/02/24 IN CRL MA 1/24 ``` ``` BY SR PP SMT NEEMA T V ``` ## B.A.No.425 of 2024 -:2:- ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.425 of 2024 ## -:3:- ## **O R D E R** Dated this the 21[st] day of February, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the sole accused in Crime No.552/2023 of the Pulpally Police Station, registered against him for allegedly committing the offences punishable under Sections 420 and 409 of the Indian Penal Code, 1860. 3. The gist of the prosecution case is that: while the accused was working as a cashier in the electrical section of the KSEB Office, Padichira, during the period from 06.12.2021 till 30.07.2022, he had misappropriated Rs.82,035/-, received as current charges from the consumers and issued manual receipts, and, thereby, cheated his employer. Thus, the accused has committed the above offences. B.A.No.425 of 2024 -:4:- 4. Heard; Sri.S.M. Prasanth, the learned counsel appearing for the petitioner, Smt. Neema. T.V., the learned Senior Public Prosecutor appearing for the respondent 1 and 2 and Sri.Arunkumar, the learned counsel appearing for the 3[rd] respondent/ defacto complainant. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has not committed any offence as alleged by the prosecution. At any rate, the petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. The petitioner is willing to cooperate with the Investigating Officer. The petitioner will not flee from justice or interfere with the investigation. Hence, an order of pre-arrest bail may be passed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner had misappropriated Rs.82,035/- during his tenure as the B.A.No.425 of 2024 ## -:5:- cashier in the Padichira Section of the defacto complainant. The custodial interrogation of the petitioner is absolutely necessary and the recovery is to be effected. If the petitioner is granted an order of prearrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. The learned counsel for the defacto complainant also opposed the application. He submitted that on an earlier occasion also, the petitioner had indulged in the very same alleged act. In the disciplinary proceedings, he was found guilty and three of his increments were barred. However, on the petitioner’s solemn assurance and undertaking that he would not repeat the similar offence, he was reinstated in the service. Thereafter, the petitioner has committed the present crime. The disciplinary proceedings have been initiated and the petitioner is placed under suspension. The audit report shows that the petitioner has misappropriated Rs.82,038/- by receiving the amount in cash from the B.A.No.425 of 2024 ## -:6:- consumers and issuing manual receipts to them. The allegations against the petitioner are serious and grave. Hence, the petitioner may not be granted an order of pre-arrest bail. ## 8. The materials on record reveal that the petitioner had moved to the Court of Session twice by filing Crl.M.C.Nos. 823 and 859 of 2023 for an identical relief. The learned Sessions Judge, by Annexure A and B orders, dismissed the applications on the ground that there is prima facie material to establish that the petitioner has committed the above offences. Moreover, the petitioner’s custodial interrogation is necessary, and recovery is to be effected. ## 9. 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 B.A.No.425 of 2024 -:7:- 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 people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend B.A.No.425 of 2024 ## -:8:- 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.425 of 2024 -:9:- 10. 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. 11. 10. 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. B.A.No.425 of 2024 ## -:10:- 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.” 12. On an anxious consideration of the facts, materials placed on record, the rival submissions made across the Bar, particularly taking note of the fact that the audit report of the defacto complainant reveals that the petitioner has allegedly misappropriated Rs.82,035/and has issued fabricated receipts to the consumers of the defacto complainant, that the petitioner had on an earlier occasion also indulged in a similar act, that the investigation in the case is only at the preliminary stage, that the petitioner’s custodial interrogation is necessary, and that the recovery is to be effected, I am not convinced that the petitioner has made out exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. On comprehending the B.A.No.425 of 2024 ## -:11:- nature, seriousness, and gravity of the economic offences alleged against the petitioner, I am of the definite view that this application is only liable to be dismissed. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/ 21.02.2024 B.A.No.425 of 2024 ## -:12:- ## **`APPENDIX OF BAIL APPL. 425/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE AA TRUE COPY OF ORDER 823 OF 2023 BEFORE THE SESSIONS JUDGE ,KALPETTA,WAYANAD DATED 10/11/2023 ``` ``` ANNEXURE BA TRUE COPY OF ORDER 859 OF 2023 BEFORE THE SESSIONS JUDGE ,KALPETTA,WAYANAD DATED 13/12/2023 ```