FAVAS v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1540 OF 2024 ``` ``` CRIME NO.9/2024 OF PERINGOME POLICE STATION, KANNUR ``` ``` PETITIONER: ``` ``` FAVAS AGED 31 YEARS S/O. ABOOBACKER, MANAPPATTIL HOUSE, (PO) OLAVANNA, KOZHIKODE, PIN – 673019 BY ADVS.RAMEEZ NOOH P.RAFTHAS ``` ``` RESPONDENT: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.1540/2024_ _-:2:-_ Dated this the 18[th] day of March, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.9/2024 of Peringome Police Station, Kannur, registered against him, for allegedly committing the offences punishable under Sections 468 & 471 of the Indian Penal Code, 1860. 3. The essence of the prosecution case is that: the accused who is the owner of a lorry bearing No.KL-11-AU-2115 had consciously forged the validity of the insurance policy to cheat the de-facto complainant and produced it before the Motor Accidents Claims Tribunal, Thaliparamba, in O.P. (MV)No.492/2020, to make it appear that his vehicle _B.A.No.1540/2024_ _-:3:-_ was validly insured as on the date of accident i.e., 13.06.2020. In fact, the validity of the insurance policy had expired prior to the date of accident. Thus, the accused has committed the above offences. 4. Heard: Sri.Rameez Nooh, the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. In fact, the petitioner had given his vehicle to a friend named ‘Ajmal’ on rent. The petitioner’s friend had assured to renew the insurance policy. When the vehicle met with an accident the petitioner bona fide believed that his friend had renewed the insurance policy. Accordingly, the petitioner produced the same before the Tribunal. The petitioner did not assume that his friend had _B.A.No.1540/2024_ _-:4:-_ fabricated the insurance policy. In any given case, the petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. He submitted that the crime was registered on the basis of a complaint that was lodged by the insurance company, namely Shriram General Insurance The on Company. company verification of the policy found that the validity of the policy of the said vehicle was forged by the accused. The preliminary investigation has revealed that there are other persons involved in the crime. The investigation is at its preliminary stage, the petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, he would sabotage the entire investigation. Hence, the application may be dismissed. _B.A.No.1540/2024_ _-:5:-_ 7. The prosecution allegation against the petitioner is that he consciously after knowing that the validity of the insurance policy of his vehicle had expired, for the purpose of claiming indemnity, had produced a forged insurance policy by extending the expiry date of the insurance policy. It was only after the insurance company verified the policy, it was unveiled that the policy was forged. 8. The petitioner had filed Crl.M.C.No.116/2024 before the Court of Session, Kozhikode, seeking an identical relief. By Annexure-A2 order, the learned Sessions Judge, had dismissed the application on the finding that the offences alleged against the petitioner are serious in nature and the investigation is only at its preliminary stage. 9. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the _B.A.No.1540/2024_ _-:6:-_ ## powers under Section 438 of the Code has observed as follows: “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 xxxx xxx 10. xxx xxx xxx xxx xxx xxx xxx xxx xxx 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 _B.A.No.1540/2024_ _-:7:-_ 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. ….. …...” 10. 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 a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and to misuse his liberty. 11. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the _B.A.No.1540/2024_ _-:8:-_ seriousness, gravity, and nature of the offences alleged against the petitioner, that the investigation is only at its preliminary stage and that the petitioner’s custodial interrogation is necessary, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Section 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. Sd/- ## **C.S.DIAS,JUDGE** DST/18.03.24 //True copy// P.A. To Judge