Hareesh Mukund v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** **BAIL APPL. NO. 2854 OF 2024** **VC NO.2/2024/PTA OF VACB, PATHANAMTHITTA** ## **PETITIONER:** **HAREESH MUKUND, AGED 32 YEARS, HAREESH BHAVAN, KALANJOOR P.O, PATHANAMTHITTA, PIN - 689694** **BY ADVS. VISHNU BHUVANENDRAN ABHILASH C.V. VARUN JACOB** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** **BY ADV** **SRI.RAJESH A SPL GP (VIGILANCE), SMT.REKHA, SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A No.2854 of 2024 2 K.BABU, J. -------------------------------------B.A No.2854 of 2024 --------------------------------------Dated this the 9[th] day of April, 2024 ## O R D E R This is an application filed under Section 438 of the Code of Criminal Procedure. 2. The petitioner is accused No.2 in V.C No.02/2024/PTA of VACB, Pathanamthitta. He is alleged to have committed the offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of the Indian Penal Code. ## Prosecution case 3. Accused No.1 is the Secretary of Kalanjoor Grama Panchayath. Accused No.1 entered into a criminal conspiracy with the petitioner with intent to allow the petitioner to obtain employment as Technical Assistant in the Grama Panchayath and in furtherance of the conspiracy, devised the selection process in such a manner that 5 marks were assigned for written test and 70 marks for interview and awarded marks for incorrect answer for written B.A No.2854 of 2024 3 test and appointed the petitioner to the post of Technical Assistant. BCA Degree certificate obtained by the petitioner via distance education mode through break in study scheme of Periyar University is not recognized by any universities in Kerala and not considered for regular appointment by the PSC. The experience certificates produced by the petitioner were obtained by dubious means. The petitioner got an appointment overlooking all other meritorious candidates. 4. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner has not participated in any conspiracy as alleged. The petitioner obtained the appointment in the Grama Panchayath through a lawful selection process. It is submitted that the documents produced by the petitioner are genuine certificates obtained from the recognized universities. 6. The learned Senior Public Prosecutor submitted that materials are sufficient to attract the offences alleged. 7. While considering the scope of jurisdiction under Section B.A No.2854 of 2024 4 ## 438 Cr.P.C., the Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] held thus: “31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216] , which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is B.A No.2854 of 2024 5 willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.” ## 8. In Siddharam Satlingappa Mhetre v. State of Maharashtra ## [(2011) 1 SCC 694] the Apex Court held thus:- “113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the B.A.Nos.5010 of 2021 & Connected cases 40 accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.” (In Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1]) the declaration of law in Siddharam Satlingappa Mhetre that no condition can be imposed while granting order of anticipatory bail alone was overruled) 9. In Sushila Aggarwal , the Constitution Bench of the Apex Court, following the decision in Gurbaksh Singh Sibbia , held that while considering an application (for grant of anticipatory bail) the Court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. B.A No.2854 of 2024 6 10. The learned Public Prosecutor opposed the bail plea of the petitioner. 11. The petitioner has established a prima facie case for getting the benefits contained in Section 438 Cr.PC. 12. Having considered the entire circumstances on the touchstone of the principles discussed above, I am of the view that the petitioner is entitled to anticipatory bail. In the result, the Bail Application is allowed as follows: - (a) The petitioner shall appear before the Investigating Officer on 26.04.2024 between 10.00 AM and 11.00 AM for interrogation. - (b) The Investigating Officer is directed to release the petitioner on bail, in the event of his arrest, on his executing bond for Rs.1,00,000/- (Rupees - One Lakh only) with two solvent sureties each for the like sum. - (c) The petitioner shall appear before the Investigating Officer on all Saturdays between - 10 A.M. and 11 A.M. till the final report is filed. 7 B.A No.2854 of 2024 - (d) The petitioner shall not influence the witnesses in this case or tamper with the evidence. - (e) The petitioner shall fully co-operate with the investigation, including subjecting himself to `deemed custody’, as observed in Gurbaksh Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] and Sushila Aggarwal & Others v. State (NCT of Delhi) and Ors. (AIR 2020 SC 831) , for the purpose of discovery or identification, if any. Sd/K.BABU, JUDGE KAS B.A No.2854 of 2024 8 ## APPENDIX OF BAIL APPL. 2854/2024 |PETITIONER ANNEXURES|PETITIONER ANNEXURES| |---|---| |Annexure-I|TRUE COPY OF THE FIR NO. 02/2024 DATED| ||15.02.2024 OF VIGILANCE AND ANTI-| ||CORRUPTION BUREAU, PATHANAMTHITTA| |Annexure-II|TRUE COPY OF THE LETTER ISSUED BY| ||PERFORMANCE AUDIT SUPERVISOR AND SENIOR| ||SUPERINTENDENT TO THE DEPUTY DIRECTOR OF| ||PATHANAMTHITTA DATED 22.12.2020| |Annexure-III|TRUE COPY OF THE LETTER DATED 27.01.2021| ||BY THE PANCHAYATH ASSISTANT DIRECTOR TO| ||THE 4TH RESPONDENT FOR AN INQUIRY AND| ||HEARING AGAINST THE PETITIONER WHICH| ||WILL BE CONDUCTED ON 30.01.2021| |Annexure-IV|TRUE COPY OF THE COMPLAINT PREFERRED BY| ||MR. PRADEEP TO THE DEPUTY DIRECTOR OF| ||PATHANAMTHITTA,<br>OBTAINED<br>BY<br>THE| ||PETITIONER VIA RIGHT TO INFORMATION ACT| |Annexure-V|TRUE COPY OF THE LETTER SUBMITTED BY THE| ||PETITIONER TO THE SECRETARY, KALANJOOR| ||GRAMA PANCHAYAT DATED 15.02.2021| |Annexure-VI|TRUE COPY OF THE DECLARATION DATED| ||11.02.2021 ISSUED FROM SAGA INSTITUTE OF| ||MANAGEMENT<br>STUDIES,<br>MALAPPURAM| ||CERTIFYING THAT THE PETITIONER IS A| ||BONAFIDING STUDENT TO THE SECRETARY OF| ||PANCHAYATH| |Annexure-VII|TRUE COPY OF THE LETTER ISSUED BY THE| ||DEPUTY DIRECTOR OF PATHANAMTHITTA TO THE| ||SECRETARY, KALANJOOR GRAMA PANCHAYAT| |Annexure-VIII|TRUE COPY OF THE COMPLAINT PREFERRED BY| ||MR. PRADEEP AGAINST THE PETITIONER DATED| ||5.02.2021 OBTAINED VIA RIGHT TO| ||INFORMATION ACT| |Annexure-XI|TRUE COPY OF THE LETTER ISSUED BY THE| ||SECRETARY OF PANCHAYATH TO THE DEPUTY| ||DIRECTOR<br>OF<br>PATHANAMTHITTA<br>AFTER| ||VERIFYING THE DOCUMENTS| |Annexure -X|TRUE COPY OF THE LETTER ISSUED BY THE| ||SECRETARY OF PANCHAYATH TO THE| ||REGISTRAR, PERIYAR UNIVERSITY DATED| ||16.02.2021.| B.A No.2854 of 2024 9 Annexure-XII TRUE COPY OF THE LETTER DATED 24.08.2021 ISSUED BY THE DEPUTY DIRECTOR OF PATHANAMTHITTA TO THE SECRETARY, KALANJOOR GRAMA PANCHAYAT Annexure XIII TRUE COPY OF THE LETTER DATED 03.09.2021 ISSUED BY THE SECRETARY, KALANJOOR GRAMA PANCHAYAT TO THE DEPUTY DIRECTOR OF PATHANAMTHITTA Annexure XIV TRUE COPY OF THE LETTER DATED 01.12.2022 OF THE PANCHAYATH DIRECTOR PATHANAMTHITTA TO PANCHAYATH DIRECTOR, THIRUVANANTHAPURAM Annexure XV TRUE COPY OF ORDER DATED 06.12.2022 IN WPC NO. 39442/2022