Drishyan K.R v State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 873 OF 2024 ``` ## **`CRIME NO.732/2023 OF KENICHIRA POLICE STATION, WAYANAD PETITIONER/ACCUSED:`** ``` DRISHYAN K.R AGED 38 YEARS S/O. RANJAN K.S. MUKAMI BHAVAN, MYTHIRI NAGAR, NOORANI P.O., PALAKKAD DISTRICT, PIN - 678004 BY ADVS. G.HARIHARAN PRAVEEN.H. K.S.SMITHA B.R.SINDU V.R.SANJEEV KUMAR ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER KENICHIRA POLICE STATION, KENICHIRA. WAYANAD DISTRICT, PIN - 673593 3MRS. DELNA, W/O. DILLJIN, RESIDING AT PARAPPALLIYIL HOUSE, KATTADIKAVALA, NADAVAYAL.P.O., NADAVAYAL, WAYANAD DISTRICT, PIN - 670721 ``` ## **`OTHER PRESENT:`** ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. NO.873 of 2024** ``` 2 ``` ## **Dated this the 20[th] day of February, 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 accused in Crime No.732/2023 of the Kenichira Police Station, Wayanad, registered against the petitioner for allegedly committing the offence punishable under Section 420 of the Indian Penal Code 3. The crux of the prosecution case is that; the accused had received an amount of Rs.10,00,000/- from the 3[rd] respondent/ de facto complainant assuring him an employment visa in the United Kingdom. However, the accused failed to secure the employment or return the said amount. Thus, the accused has committed the **B.A. NO.873 of 2024** ``` 3 ``` above offence. 3. Heard Sri. G.Hariharan, learned counsel appearing for the petitioner and Smt.Seetha S, the learned Senior Public Prosecutor. 4. Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. The allegations in Annexure I FIR would show that the dispute is purely civil in nature. At any rate, the petitioner’s custodial interrogation is not required and no recovery is to be effected. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and co-operate with the investigation. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that the petitioner has cheated the third respondent by receiving an amount of Rs.10,00,0000/- for securing an employment visa in the **B.A. NO.873 of 2024** ``` 4 ``` United Kingdom. The petitioner has misappropriated the said amount and failed to keep up his promise. The 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 with the investigation. Hence, the application may be dismissed. 6. 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. **B.A. NO.873 of 2024** ``` 5 ``` 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 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 **B.A. NO.873 of 2024** ``` 6 ``` 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. ## 7. 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 **B.A. NO.873 of 2024** ``` 7 ``` 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. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, and on comprehending the seriousness, gravity and accusations of the economic offence levelled against the petitioner, that the petitioner’s custodial interrogation is necessary, that the recovery is to be effected, and that the investigation is only at its preliminary stage, I am of the definite view that the petitioner has not made out any 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. Consequently, the bail application is dismissed Nonetheless, I direct that, if the petitioner ``` 8 ``` ## **B.A. NO.873 of 2024** surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits on the date of surrender itself and pass orders in accordance with law. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. **SD/-** ## **C.S.DIAS, JUDGE** ``` rmm/20/2/2024 ```