Hyder Ali v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ## **`BAIL APPL. NO. 5668 OF 2022`** ``` CRIME NO.444/2022 OF KUTHUPARAMBA POLICE STATION, KANNUR ``` ## **`PETITIONER/ACCUSED:`** ``` HYDER ALI AGED 46 YEARS S/O ABDUL RAHIMAN, KAIKUTTICHAL HOUSE, KUNNAMANGALAM, KOZHIKODE CITY, PIN - 673571 BY ADV JOMY K. JOSE ``` ## **`RESPONDENTS/STATE:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031` - `2 THE STATION HOUSE OFFICER KUTHUPARAMBA POLICE STATION KANNUR DISTRICT, PIN - 670643` ``` BY ADV ``` ``` SRI C.S. HRITHWIK – SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO. 5668 OF 2022 ``` ## **C.S.DIAS, J.** **---------------------------------------------------B.A. No. 5668 of 2022 ---------------------------------------------------Dated this the 30[th] day of January, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.444/2022 of Kuthuparamba Police Station, Kannur, registered against him for allegedly committing the offences punishable under Sections 406, 420 and 34 of the Indian Penal Code, 1860, (‘IPC’, for short) and Sections 3, 4 and 5 of the Prize Chits and Money Circulation Schemes(Banning) Act, 1978. 3. The gist of the prosecution is that: the accused in furtherance of their common intention had induced the defacto complainant to join an online business and ``` 3 ``` ``` BAIL APPL. NO. 5668 OF 2022 ``` allegedly made the depositors to deposit Rs.2.086 crores, after promising to repay with 1% interest per day as profit. However, the accused have not returned the principal or paid any profit. Thus, the accused has committed the above offences. 4. Heard; Sri. Jomy K. Jose, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik, the learned Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioner submitted that, the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The investigation in the case is practically complete. The petitioner’s custodial interrogation is not necessary. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor vehemently opposed the application. He contended that the accused ``` 4 ``` ``` BAIL APPL. NO. 5668 OF 2022 ``` are involved in a huge financial scam. More than Rs.2 crores has been siphoned of by the accused, by making dishonest promises to the depositors. They have made unlawful gain. The petitioner’s custodial interrogation is and is to be The necessary recovery effected. investigation is still in progress. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. 7. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: **111** . No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 ``` 5 ``` ``` BAIL APPL. NO. 5668 OF 2022 ``` SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. **112** . The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is ``` 6 ``` ``` BAIL APPL. NO. 5668 OF 2022 ``` implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall 2024:KER:4965 B.A.No.11403 of 2023 -:7:- have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. **126** . We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a ``` 7 ``` ``` BAIL APPL. NO. 5668 OF 2022 ``` rigorous code of self-imposed limitations. 8. After bestowing my anxious consideration to the materials placed on record, particularly taking into account the nature, gravity and the seriousness of the offences alleged against the petitioners, that the investigation of the case is in progress, that the custodial interrogation of the petitioners is necessary and that the recovery is to be effected, I am of the definite view that the petitioners are not entitled to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 9. Nonetheless, I direct that, if the petitioner surrenders 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 moves an ``` 8 ``` ``` BAIL APPL. NO. 5668 OF 2022 ``` application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. 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** BR ``` 9 ``` ``` BAIL APPL. NO. 5668 OF 2022 ``` ## **`APPENDIX OF BAIL APPL. 5668/2022`** ``` PETITIONER’S ANNEXURES Annexure AICITIZEN COPY OF THE FIR IN CRIME.NO. 444/22 OF KUTHUPARAMBA POLICE STATION, KANNUR DISTRICT ``` ``` RESPONDENTS’ ANNEXURES: NIL ```