ISHAQ.P @ CHEKKU v. STATE OF KERALA & THE STATION HOUSE OFFICER, NOOLPUZHA POLICE STATION

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 955 OF 2024 ``` ``` CRIME NO.890/2023 OF NOOLPUZHA POLICE STATION, WAYANAD ``` ## **`PETITIONER/ACCUSED NO.2:`** ``` ISHAQ.P @ CHEKKU, AGED 63 YEARS SON OF KUNJALAVI, PALADA HOUSE, VELLAYUR P.O, MALAPPURAM DISTRICT, PIN - 679323 ``` ## **`BY ADV C.C.ANOOP`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER, NOOLPUZHA POLICE STATION, WAYANAD DISTRICT, PIN - 673595`** ## **`OTHER PRESENT:`** ## **`SR PP SMT NEEMA T V`** ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** **B.A. NO.955 of 2024** ``` 2 ``` ## **Dated this the 4[th] day of March, 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 the second accused in Crime No.890/2023 of the Noolpuzha Police Station, Wayanad registered against the accused for allegedly committing the offences punishable under Sections 406, 420 r/w Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that; the accused in furtherance of their common intention to cheat the de facto complainant, on 7.9.2017 the first accused had married the de facto complainant after misrepresenting that the second accused was his uncle. **B.A. NO.955 of 2024** ``` 3 ``` The accused had fraudulently obtained 3½ sovereigns of gold ornaments and Rs.1,50,000/- from the de facto complainant. Thereafter, they misappropriated the gold and money. Thus, the accused have committed the above offences. 4. Heard Sri. C.C. Anoop, learned counsel appearing for the petitioner and Smt. Neema T.V. the learned Senior Public Prosecutor. 5. Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. A reading of Annexure A1 FIR would substantiate that the offences under Sections 406 and 420 will not be attracted. In any case, 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 contended that the ``` 4 ``` ## **B.A. NO.955 of 2024** petitioner is the person with criminal antecedents. The petitioner is involved in three other crimes of similar nature, namely, Crime No.959/2023, 653/20 and 96/2019 of the same police station. If the petitioner is granted an order of pre-arrest bail, it would hamper with the full and proper investigation of the case. Moreover, even though Section 41 A notice was served on the petitioner, he did not co-operate with the investigation. The petitioner’s custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. 7. The prosecution allegation is that, the accused 1 and 2 with an intention to cheat the de facto complainant had represented that the second accused was the uncle of the first accused and they received 3 ½ sovereigns of gold ornaments and Rs.1,50,000/- from the de facto complainant and, thereafter, they misappropriated the gold and money. **B.A. NO.955 of 2024** ``` 5 ``` ## 8. 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 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; **B.A. NO.955 of 2024** ``` 6 ``` (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 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 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 **B.A. NO.955 of 2024** ``` 7 ``` 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 rigorous code of self-imposed limitations. 9. 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 to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. In **P. Chidambaram v. Directorate of Enforcement** [(2019) 9 SCC 24], the Hon'ble Supreme Court has observed thus: **B.A. NO.955 of 2024** ``` 8 ``` “69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, and on comprehending the nature, seriousness and gravity of the economic offences allegedly against the petitioner, that the investigation in **B.A. NO.955 of 2024** ``` 9 ``` the case is at its nascent stage, that the petitioner’s custodial interrogation is necessary and 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 Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 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 application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and in accordance with law. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating ``` 10 ``` ## **B.A. NO.955 of 2024** Officer shall be free to arrest the petitioner as if no order has been passed in this case. **SD/-** **C.S.DIAS, JUDGE** **rmm/4/3/2024**