Harikrishnan v. State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946 BAIL APPL. NO. 3397 OF 2024 ``` ``` CRIME NO.60/2023 OF AMBALAPPUZHA POLICE STATION, ALAPPUZHA ``` ## **`PETITIONER:`** ``` HARIKRISHNAN, AGED 23 YEARS, S/O. SATHEESH KUMAR, SOPANAM, KOTTULI, KOZHIKODE., PIN – 673016 ``` ``` BY ADVS. B.PRAMOD BIJU VIGNESWAR ATHUL M.V. ``` ## **`RESPONDENTS/STATE:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031`** - **`2 THE STATION HOUSE OFFICER, AMBALAPPUZHA POLICE STATION, AMBALAPPUZHA P. O,ALAPPUZHA., PIN – 688561`** - **`3 SURENDRAN, S/O. JANARDHANAN, VALIYAVEETIIL, PURAKKAD P.O, AMBALAPPUZHA, ALAPPUZHA IMPLEADED AS R3 AS PER ORDER DTD 5-7-24 IN CRL MA 1/24`** ## **`BY ADV NO ADVOCATE`** ## **`OTHER PRESENT:`** ## **`SR PP SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.3397 of 2024 -:2:- Dated this the 25[th] day of July, 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 petitioner is now ranked as the 4[th] accused (mentioned as 5[th] accused in the FIR) in Crime No.60/2023 of the Ambalapuzha Police Station, Alappuzha, which is registered against the accused for allegedly committing the offences punishable under Sections 406 and 420 r/w Section 34 of the Indian Penal Code (in short, IPC). 3. The essence case of the prosecution is that: the accused, in furtherance of their common intention, to make unlawful gain for themselves and unlawful loss to the de facto complainant, the first accused introduced B.A.No.3397 of 2024 -:3:- himself and accused 2 to 4 as partners of the real estate business and made the de facto complainant invest Rs.17,42,000/- with the accused on the assurance of giving him huge profit. The de facto complainant had transferred an amount of Rs. 2,67,000/- to the bank account of the 4[th] accused. Even though the accused received the money, they did not pay any profit or return the capital. Thus, the accused have committed the above offences. 4. Heard; Sri.B.Pramod, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. A reading of the First Information Report would clearly reveal that there is no direct transaction between the petitioner and the de facto complainant. It was the first accused B.A.No.3397 of 2024 -:4:- who introduced himself to the de facto complainant and it is evident that the first accused has returned the entire amount back to the de facto complainant by way of cheques which got dishonoured. It is due to the dishonour of the cheques that the de facto complainant he filed the present complaint. The dispute between the accused and the de facto complainant is purely civil in nature. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to substantiate the petitioner's involvement in the crime. The de facto complainant had transferred Rs.2,67,000/- to the bank account of the petitioner. The petitioner is the beneficiary of the proceeds of the crime. The petitioner’s custodial interrogation is necessary and recovery is to be B.A.No.3397 of 2024 -:5:- effected for the proper and full investigation of the crime. If the petitioner is granted an order of prearrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that, the petitioner along with the other accused had induced the de facto complainant to invest money in their business on the assurance of paying him profit. Consequent to the said inducement, the de facto complainant had transferred Rs.2,67,000/- to the bank account of the petitioner. However, the petitioner and the other accused did not pay the profit or return the capital. 8. On an appreciation of the materials on record, it is evident that the petitioner had received Rs.2,67,000/- from the de facto complainant. Whether the petitioner had induced the de facto complainant or not is a matter to be investigated and ultimately B.A.No.3397 of 2024 -:6:- decided at the time of trial. The petitioner had filed a similar application before the Court of Session, Alappuzha, which was dismissed by Annexure A2 order, finding that the petitioner’s custodial interrogation is necessary for the full fledged investigation of the crime. 9. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: “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 xxx B.A.No.3397 of 2024 -:7:- 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 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. xxx xxx” ## 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 B.A.No.3397 of 2024 -:8:- to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 11. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, and on a prima facie finding that the petitioner is the beneficiary of the proceeds of the crime, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Sec.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. Sd/- **C.S.DIAS,JUDGE** `rmm25/7/20` 24