Faizal v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 7[TH] DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 BAIL APPL. NO. 2750 OF 2024 ``` ``` CRIME NO.2/2024 OF CYBER CRIME POLICE STATION, IDUKKI, ``` ## **`IDUKKI`** ## **`PETITIONER/ACCUSED:`** ``` FAIZAL, AGED 47 YEARS S/O. IBRAHIM HAJI,UMMATHUR HOUSE, MANGALASSERI, MANJERI,KARUVAMBRAM, MALAPPURAM DISTRICT, PIN - 676123 ``` ``` BY ADV K.RAKESH ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM , KOCHI, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER , IDUKKI CYBER CRIME POLICE STATION,IDUKKI DISTRICT, PIN - 685603`** ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.2750 of 2024 -:2:- Dated this the 7[th] day of June, 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 5[th] accused (wrongly shown as 7[th] accused in the bail application) in Crime No.2/2024 of the Idukki Cyber Crime Police Station, Idukki, registered against the accused for allegedly committing the offences punishable under Section 420 r/w Section 34 of the Indian Penal Code and Section 66(D) of the Information Technology Act. 3. The gist of the prosecution case is that: the accused, in furtherance of their common intention, contacted the husband of the de facto complainant on his mobile number by impersonating themselves to be recruitment consultants of DDB worldwide media, B.A.No.2750 of 2024 -:3:- Giana. They offered a part-time job to the de facto complainant on payment of Rs.15,10,500/-. Accordingly, the complainant transferred the above amount in 11 transactions. However, the accused failed to secure any online job and refused to return the amount to the de facto complainant. Thus, the accused has committed the above offences. 4. Heard; K.Rakesh, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to establish the petitioner’s involvement in the crime. A reading of the FIR would show that the allegation is only against the accused 1 to 3. The Investigating Officer has deliberately implicated the petitioner as an accused in the crime. B.A.No.2750 of 2024 -:4:- The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, opposing the application. It is submitted that there are incriminating materials to establish that certain amounts were transferred to the account of the petitioner, who in turn has transferred the amount to other accused. There are also telephone communications between the petitioner and the other accused. 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 the investigation. Hence, the application may be dismissed. 7. On an evaluation of the materials on record, it can be gathered that there is specific overt act B.A.No.2750 of 2024 -:5:- alleged against the petitioner that he had received money from the de facto complainant through online transactions and also had telephone communications with the other accused. Nonetheless, that is a matter to be investigated and decided at the time of trial. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx xxx B.A.No.2750 of 2024 -:6:- 24.We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx” 9. 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 B.A.No.2750 of 2024 -:7:- to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. On an anxious consideration of the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the accusations that there are certain financial transactions and telephone communications between the petitioner and the other accused, I am of the view that the petitioner has not made out any convincing ground to invoke the discretionary powers 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 surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court B.A.No.2750 of 2024 -:8:- on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, consider the bail application on its merits. 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/6/6/2024