GIRIJA BHAI K.B v. STATE OF KERALA & ORS

``` CRL.MC NO. 5496 OF 2022 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944 CRL.MC NO. 5496 OF 2022 ``` ``` AGAINST THE ORDER IN CRL.MC 1530/2022 OF ADDITIONAL SESSIONS COURT (ADHOC), ERNAKULAM ``` ## **`PETITIONER:`** ``` GIRIJA BHAI K.B AGED 64 YEARS W/O LATE MURALI, THUMBARATH HOUSE, MALLUSSERRY, NEDUMBASERRY VILLAGE OF ALUVA TALUK, PIN – 683579 ``` ``` BY ADVS. SAIBY JOSE KIDANGOOR BENNY ANTONY PAREL ANOOP SEBASTIAN PRAMITHA AUGUSTINE IRINE MATHEW ADITHYA KIRAN V.E ANJALI NAIR NAAIL FATHIMA ABDULLA A. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER CHENGAMAND POLICE STATION, ALUVA, PIN - 683578 3SREEJA SOMAN A.B AGED 46 YEARS W/O SOMAN, KOTTANATH HOUSE, KAPPRASERY, CHENGAMANAD VILLAGE, ALUVA TALUK ERNAKULAM DISTRICT, PIN – 683102 ``` ``` CRL.MC NO. 5496 OF 2022 ``` ``` 2 ``` ``` 4SHIVAJITH K.S S/O.SOMAN, AGED 23 YEARS, KOTTANATH HOUSE, KAPPRASERY, CHENGAMAND VILLAGE, ALUVA TALUK ERNAKULAM DISTRICT, PIN - 683102 5SOMANATHAN K.K AGED 59 YEARS KOTTANATH HOUSE, KAPPRASERY, CHENGAMAND VILLAGE, ALUVA TALUK ERNAKULAM DISTRICT, PIN - 683102 6ARJUN K.S AGED 25 YEARS S/O.SOMAN, KOTTANATH HOUSE, KAPPRASERY, CHENGAMAND VILLAGE, ALUVA TALUK ERNAKULAM DISTRICT, PIN – 683102 ``` ``` BY ADVS. R1 & R2 BY SRI.G.SUDHEER-PUBLIC PROSECUTOR Bonny Benny BEJOY JOSEPH P.J.(K/000331/2019) BALU TOM(K/498/2014) GOVIND G. NAIR(K/001627/2018) M.RAMESH CHANDER (SR.)(R-284) C.K.RAPHEEQUE(K/1150/2009) K.B.NIDHINKUMAR(K/160/2010) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5496 OF 2022 ``` ``` 3 ``` ## ORDER This Crl.M.C. has been filed to set aside the order granting anticipatory bail by the Additional Sessions Court, Ernakulam (for short ‘the court below’) to the accused in Crime No.387/2022 of Chengamanad Police Station. 2. The petitioner is the de facto complainant. The respondents 3 to 6 are the accused. The crime was registered by the Chengamanad Police Station pursuant to the direction of the Judicial First Class Magistrate Court, Aluva under Section 156(3) of Cr.P.C on a private compliant preferred by the petitioner. 3. The prosecution case in short is that accused Nos.1 to 4 obtained a total sum of Rs.1,17,75,000/- from the de facto complainant during the period from 2017 to 2021 by fraudulently and dishonestly inducing her to believe that they would perform the rituals for removing the evils and negative energy, which prevailed in her house and thereby committed the offences punishable under ``` CRL.MC NO. 5496 OF 2022 ``` ``` 4 ``` Sections 406 and 420 r/w 34 of IPC. 4. The respondents 3 to 6 moved an application for anticipatory bail at the court below as Crl.M.C. No.1530/2022. The petitioner herein was not a party in the bail application. The court below after hearing the respondents 3 to 6 as well as the Public Prosecutor, granted anticipatory bail to the respondents 3 to 6 as per the order dated 19/7/2022. The said order is under challenge in this Crl.M.C. 5. I have heard Sri.Saiby Jose Kidangoor, the learned counsel for the petitioner and Sri.Ramesh Chander, the learned senior counsel for respondents 3 to 6 and Sri.G.Sudheer, the learned Public Prosecutor. 6. The learned counsel for the petitioner Sri.Saiby Jose Kigangoor submitted that the court must ordinarily be cautious and circumspect in exercising the power under Section 438 of Cr.P.C which is purely discretionary in nature and that if the discretionary power to grant anticipatory bail was exercised without any valid ``` CRL.MC NO. 5496 OF 2022 ``` ``` 5 ``` reason or on considerations irrelevant or not germane to the determination, such order could not be sustained and could be interfered by the constitutional court exercising the power vested under u/s 482 of Cr.P.C. According to the counsel, the impugned order suffers from serious infirmities and the finding therein would prejudicially affect the investigation as well as the trial resulting in serious miscarriage of justice to the petitioner. The learned counsel further submitted that a sum of Rs.1 crore is in the hands of the accused Nos. 3 to 6 and at least the court below as a condition while granting bail could have directed the respondents 3 to 6 to deposit the said amount. He relied on the decision of the Apex Court in Prasanth Singh Rajput v. The State of Madhya Pradesh and Ors (AIR (2021)SC 5004) to substantiate his contention that when a court considering an application for bail fails to consider the relevant factors, a superior court may justifiably set aside the order granting bail. 7. Per contra, the learned senior counsel for the 2[nd] respondent Sri.Ramesh Chander submitted that court below did not ``` CRL.MC NO. 5496 OF 2022 ``` ``` 6 ``` commit any error as alleged by the petitioner and it was only after considering the relevant facts and records, it passed the order granting anticipatory bail to the petitioner. The counsel further submitted that respondents 3 to 6 are co-operating with the investigation and there is no case that any of the bail conditions is violated. 8. It is no more res integra that if the order granting bail is perverse for the reason that the irrelevant material of substantial nature was taken into account or relevant materials omitted from consideration, the superior court will be justified in cancelling the bail invoking S.482 of Cr.P.C. [See -- Dinesh M. N. (S.P.) v. State of Gujarat (2008 KHC 4583) and Narendra K. Amin v. State of Gujarat and Another (2008 KHC 4584) ]. This Court recently in X v. State of Kerala (2022 (3) KLT 463) following the judgment of the Apex Court in Neeru Yadav v. State of UP ( 2015 KHC 4650) has held that if the order granting bail by the Court of Session is patently perverse, illegal, unjustified and suffers from serious infirmities resulting in ``` CRL.MC NO. 5496 OF 2022 ``` ``` 7 ``` miscarriage of justice or is vitiated by the arbitrary and wrong exercise of discretion by the court or if there is manifest impropriety, the same can be set at naught by the High Court under Section 482 of Cr.P.C. Now let me examine whether the impugned order is perverse or is vitiated by arbitrary and wrong exercise of discretion by the court below warranting interference by this Court under Section 482 of Cr.P.C. 9. The case of the petitioner as revealed from her statement is that during the period from 2017 to 2021, the respondents 3 to 4 fraudulently and dishonestly induced her to part with Rs.1,17,75,000/- and thus cheated her. Even according to the petitioner, the entire amount was transacted through bank. Thus, there would be documentary evidence to prove the transaction. The investigation team has already collected those documents as part of the investigation. An agreement allegedly executed between the petitioner and respondents 3 to 6 is also seized. Of course, the said agreement is in dispute. It has also come on record that a civil suit ``` CRL.MC NO. 5496 OF 2022 ``` ``` 8 ``` has been preferred by the first accused for a declaration that the said agreement was executed under coercion and thus null and void. The learned counsel for the petitioner submitted that even though, initially an injunction order was passed in the said suit, it was subsequently vacated after hearing both sides. According to the counsel, the fact of dismissal was suppressed by the respondent Nos.3 to 6 in the application for anticipatory bail and that itself is a ground to cancel the bail. It is true that the fact that the interim injunction was vacated was not disclosed in the application for anticipatory bail. However, the pendency of the suit was disclosed. The suit is still pending. Therefore, it cannot be said that it is a material suppression warranting cancellation of the bail. The respondent, along with the counter affidavit, has produced Annexure R3(a) complaint filed by the petitioner to the Circle Inspector of Police, Chengamanad Police Station. In the said complaint, what is stated is that the 1[st] accused had taken a loan of Rs.1 crore and she refused to repay the same. The transaction has been projected as a simple money transaction. All these facts were taken note of by the ``` CRL.MC NO. 5496 OF 2022 ``` ``` 9 ``` court below and observed that the story put forward in the private complaint by the petitioner before the Magistrate with regard to the alleged cheating committed by the accused by offering to dispel the evils and defects from the house of the de facto complainant by resorting to black magic, appear to be a new twist made by the de facto complainant to ensure the applicability of cheating in the instant case. The learned counsel for the petitioner submitted that the said observation may have a bearing against the de facto complainant in the on going investigation. Any observation made in the bail order will have no bearing on the investigation or in the trial ultimately. As stated already, the relevant records were already seized. The entire transaction, even according to the petitioner, is through accounts. Hence, the custodial interrogation does not appear to be necessary. 10. The cancellation of bail interferes with the liberty of the individual and hence it must not be lightly resorted to. Where the discretion of the Court to grant bail has been exercised on relevant ``` CRL.MC NO. 5496 OF 2022 ``` ``` 10 ``` considerations, this Court would not normally interfere with such discretion unless it is found that the discretion has been exercised on extraneous considerations or the relevant factors which need to be taken into account while exercising such discretion are ignored or bypassed. There have to be very cogent and overwhelming circumstances that are necessary to interfere with the discretion in granting the bail. There is nothing on record to suggest that the impugned order granting bail to the respondents 3 to 6 passed by the court below is perverse, unjustified, illegal or is vitiated by the arbitrary and wrong exercise of jurisdiction warranting interference by this Court exercising jurisdiction u/s 482 of Cr.P.C. Accordingly, the Criminal Miscelleneous Case stands dismissed. The investigating agency shall proceed with the investigation untrammelled by any of the observations made in the bail order or in this order. Sd/- ## DR. KAUSER EDAPPAGATH ab ``` CRL.MC NO. 5496 OF 2022 ``` ``` 11 ``` ## APPENDIX OF CRL.MC 5496/2022 ## PETITIONER ANNEXURES - AnnexureA1 THE TRUE COPY OF FIR DATED 29.6.2022 IN CRIME NO.387 OF 2022 OF CHENGAMAND POLICE STATION, ERNAKULAM - AnnexureA2 TRUE OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE JFC ALUVA IN CMP.NO.1200/2022 DATED 17.6.2022 - Annexure3 THE TRUE COPY OF THE ORDER IN I.A NO.1/2021 IN O.S NO.285/2021 OF THE MUNSIFF COURT, ALUVA DATED 19.3.2022 - Annexure4 THE TRUE COPY OF THE ORDER DATED 19.07.2022 IN CRL.M.C.NO. 1530 OF 2022 OF THE OF THE ADDITIONAL SESSIONS JUDGE ERNAKULAM - AnnexureA5 TRUE COPY OF THE BANK STATEMENT IN ACCOUNT NO.35361110000010 DATED 25.01.2022 FROM CANARA BANK,KODAKARA BRANCH - AnnexureA6 TRUE COPY OF THE BANK STATEMENT IN ACCOUNT NO.3536101006775 DATED 08.07.2021 FROM CANARA BANK,KODAKARA BRANCH - AnnexureA7 TRUE COPY OF THE BANK STATEMENT IN ACCOUNT NO.0854111042660 DATED 08.07.2021 FROM CANARA BANK,KUNNAMKULAM BRANCH - AnnexureA8 , TRUE COPY OF THE BANK STATEMENT IN ACCOUNT NO. 35361110000010 DATED 30.06.2021 FROM CANARA BANK,KODAKARA BRANCH - RESPONDENT ANNEXURES - R3 (a) Photocopy of the complaint before the Circle Inspector of police , Chengamanad Police Station dated 25.06.2021 ``` CRL.MC NO. 5496 OF 2022 ``` ``` 12 ``` |R3|(b)|Photocopy of the Agreement dated 26.06.2021| |---|---|---| |R3|(c)|Photostat copy of the register of petitions kept at| |||Chengamanad Police Station| |R3|(d)|Photocopy of the petition dated 18.09.2021| |R3|(e)|Certified copy of the complaint with the| |||Acknowledgment by the police officer dated| |||19.05.2022|