Farooq Rasheed, Inzam Ma, and K.H. Shihab v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2318 OF 2024 ``` ``` CRIME NO.214/2024 OF VENGARA POLICE STATION, MALAPPURAM ``` ## **`PETITIONER/ACCUSED:`** - **`1 FAROOQ RASHEED AGED 24 YEARS S/O RASHEED, NADUVILAKATH, EDAKOCHI, PALLURUTHY, ERNAKULAM, PIN - 682006`** - **`2 INZAM MA AGED 28 YEARS S/O M.M. ABDUL SALAM, 10/1318, MULLAVALAPPU LANE, ST. MARY'S SCHOOL ROAD, AMARAVATHY, FORT KOCHI, PIN - 682001`** - **`3 K.H. SHIHAB AGED 31 YEARS S/O KHADER HUSSAIN, KALLUTHARA HOUSE, MLA ROAD, PALLURUTHY PO, ERNAKULAM, PIN - 682006`** ``` BY ADV K.V.SABU ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. NO.2318 of 2024** ``` 2 ``` ## **Dated this the 9[th] day of April, 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 petitioners are alleged to be the accused 1 to 3 in Crime No.214/2024 of the Vengara Police Station, Malappuram, registered against the accused for allegedly committing the offence punishable under Section 420 of the Indian Penal Code and Section 66D of the Information Technology Act, 2000. 3. The essence of the prosecution case is that, the accused had advertised regarding an online investment and induced the de facto complainant to invest an amount of Rs.1,08,42,222/- in installments, by clicking on an online link attached to the advertisement, in a portal **B.A. NO.2318 of 2024** ## **`3`** named ‘ Blackrock Angel One’ during the period from 23.01.2024 to 21.02.2024. Subsequently, the de facto complainant realised that the link was a fake one and was published only to cheat the de facto complainant. Thus, the accused have committed the above offence. 4. Heard; Sri.K.V. Sabu, the learned counsel appearing for the petitioners and Sri. C.S Hrithwik, the learned Public Prosecutor. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The petitioners are a fisherman, Bakery worker and NRI, respectively. They had pooled in money and did trade in digital currency through the crypto currency account of the second accused who is doing business through the App called ‘Binance’. The petitioners had sold some digital currency though the above application and earned some profit, **B.A. NO.2318 of 2024** ``` 4 ``` which was credited to the first petitioner’s bank account. Subsequently, the first petitioner received a notice from the Superintendent of Police, Malappuram asking him to appear before the said office. The first petitioner went along with the second petitioner to the said office and their interrogation has been completed. The petitioners are apprehensive that they may be arrested in the above crime. The petitioners custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. He submitted that only the first petitioner is the 5[th] accused in the crime. The petitioners 2 and 3 are only suspects in the crime and have not been named as accused, till date. The Investigating Officer has filed a bail objection report, inter alia, contending that the de facto complainant had clicked on the link of a website named ‘Blackrock Angel One’ on seeing the ``` 5 ``` ## **B.A. NO.2318 of 2024** advertisement in the social media. He made investments to the tune of Rs., 1,08,42,222/- to 7 accounts as per the instructions of the accused. Out the said amount, Rs.2,84,200/- has been credited to the account of the first petitioner/5th accused. In the investigation conducted till date, it is unveiled that the first petitioner has a total amount of Rs. 9,60,400/- in his bank account bearing No. 11830100287165. The investigation has revealed that the first petitioner is involved in the crime. A report has been filed before the jurisdictioanl Magistrate regarding his involvement. The accused have committed a cyber crime and detailed investigation is required because digital evidence will have to be collected. The first petitioner's custodial interrogation is necessary and recovery is to be effected. If the first petitioner is granted an order of pre-arrest bail, it would certainly sabotage the investigation. Hence, the application may be dismissed. ``` 6 ``` ## **B.A. NO.2318 of 2024** 7. On an evaluation of the prosecution allegation, it can be prima facie deciphered that the first petitioner along with the other accused had advertised regarding an online investment in a portal named’ ‘Blackrock Angel One’. The de facto complainant is alleged to have invested a total amount of Rs.1,08,42,222/- in 7 transactions as instructed by the accused. He has been thoroughly cheated by the accused who have not returned the money or paid any profits. 8. As per the report filed by the Investigating Officer, it is stated that the first petitioner is the beneficiary of the above transactions, since he is received an amount of Rs.2,84,200/- and he has a balance of Rs.9,60,400/- in his bank account. It is also reported that the accused have committed a Cyber Crime and a detailed investigation is required, especially to evaluate the evidence that is involved in the case. digital Therefore, the first petitioner’s custodial interrogation is **B.A. NO.2318 of 2024** ``` 7 ``` necessary. ## 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 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; **B.A. NO.2318 of 2024** ``` 8 ``` (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. NO.2318 of 2024** ``` 9 ``` **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. ## 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. In **P. Chidambaram v. Directorate of Enforcement[** (2019) 9 SCC 24], the Hon'ble Supreme **B.A. NO.2318 of 2024** ``` 10 ``` ## 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. 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. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness and gravity of the economic offence alleged against the first petitioner, the investigation in the case is only at its preliminary stage, the first petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not satisfied that the first petitioner has made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Section ``` 11 ``` ## **B.A. NO.2318 of 2024** 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application filed by the first petitioner is dismissed and the statement of the Public Prosecutor that the petitioners 2 and 3 are not accused is recorded. Nonetheless, I direct that, if the first petitioner 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 first petitioner moves an application for bail, the jurisdictional Court shall consider the bail application on its merits. If the first petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the first petitioner as if no order has been passed in this case. **`rmm/9.4.2024` C.S.DIAS, JUDGE**