FIRDOUSKHAN v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2364 OF 2024 ``` ``` CRIME NO.1444/2022 OF Fort Police Station, ``` ## **`Thiruvananthapuram`** ## **`PETITIONER:`** ``` FIRDOUSKHAN AGED 37 YEARS S/O LATE MAHEEN KANNU @ MUHAMMED NOOHU MAHEEN, TC 70/957, BEEMAPALLI, VALLAKKADAVU P.O, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM, PIN - 695009 ``` ``` BY ADVS. REGINALD VALSALAN ANN MARIA FRANCIS ``` ## **`RESPONDENTS:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.2364 of 2024 -:2:- Dated this the 1[st] day of April, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the fourth accused in Crime No.1444/2022 of Fort Police Station, Thiruvananthapuram, registered against the accused (eleven in number) for allegedly committing the offences punishable under Sections 465, 468, 471, 409 and 420 r/w Section 34 of the Indian Penal Code, 1860. 3. The essence of the prosecution case is that: the first accused was the Branch Manager of the SBI Marakkada Branch. The accused, in furtherance of their common intention to cheat the Bank, produced B.A.No.2364 of 2024 -:3:- fabricated documents that were showing they employed in Enlarc Info Solutions Pvt. Ltd, and secured a loan from the Bank. The fourth accused had produced a fabricated and forged salary certificate and availed a loan for Rs.6,50,000/-. Thus, the accused have committed the above offences. 4. Heard; Sri.Regiland Valsalan, the learned counsel appearing for the petitioner and Smt. Seetha.S, the learned Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of FIR would substantiate that the offences alleged against the petitioner will not be attracted. The dispute between the petitioner and the defacto complainant is civil in nature. In any given case, the petitioner's -:4:- ## B.A.No.2364 of 2024 custodial is not and no interrogation necessary, recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that the accused, in furtherance of their common intention, had fabricated and forged salary certificates of the employer of the petitioner and availed financial assistance from the bank. 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. 7. The prosecution allegation against the petitioner is that, he along with the other accused to cheat the bank had fabricated his salary certificate and produced before the bank, and availed of a personal B.A.No.2364 of 2024 ## -:5:- loan. 8. 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 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 -:6:- ## B.A.No.2364 of 2024 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. ….. …...” 9. 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 B.A.No.2364 of 2024 -:7:- 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. 10. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially taking into account the fact that the investigation in the case is in progress, that the petitioner’s custodial interrogation is necessary, and that the recovery is to be effected, 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. Resultantly, the bail application is dismissed. B.A.No.2364 of 2024 -:8:- 11. Nonetheless, I direct that, if the petitioner surrender 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 move 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** mtk/01.04.24 B.A.No.2364 of 2024 -:9:- ## **`APPENDIX OF BAIL APPL. 2364/2024`** |**`PETITIONER ANNEXURES`**|**`PETITIONER ANNEXURES`**| |---|---| |**`Annexure-A1`**|**`TRUE COPY OF THE FIRST INFORMATION`**| ||**`REPORT REGISTERED IN FORT POLICE`**| ||**`STATION AS CRIME NO.1444/2022 UNDER`**| ||**`SECTIONS 465,468,471,409,420 R/W 34 OF`**| ||**`IPC OF INDIAN PENAL CODE DATED`**| ||**`14.10.2022`**| |**`Annexure-A2`**|**`TRUE COPY OF THE ORDER DATED 30.3.2023`**| ||**`PASSED BY THIS COURT IN CRL.M.APPL NO.1`**| ||**`OF 2023 IN CRL.MC NO. 1939 OF 2023`**| |**`Annexure-A3`**|**`CERTIFIED COPY OF THE ORDER DATED`**| ||**`5.3.2024 PASSED BY THE ADDITIONAL`**| ||**`SESSION JUDGE-IV, THIRUVANANTHAPURAM IN`**| ||**`CRL.MC NO.487 OF 2024`**|