JENCY JANNET & VIJAYA v. STATE OF KERALA

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 ``` ## `BAIL APPL. NO. 10642 OF 2023` ``` CRIME NO.1058/2023 OF MUNNAR POLICE STATION, IDUKKI ``` ## `PETITIONERS/ACCUSED NOS 2 & 3:` ``` 1JENCY JANNET, AGED 30 YEARS W/O. ARUN, LAKSHAM COLONY, MUNNAR, IDUKKI, PIN – 685612 2VIJAYA, AGED 60 YEARS W/O. AMBA ARUMUGHAM, LAKSHAM COLONY, MUNNAR, IDUKKI, PIN – 685612 ``` ## `BY ADV NIREESH MATHEW` ## `RESPONDENT/STATE:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN – 682031 ``` ``` 2THANISHKAA, W/O GNANAPRAKASH, NO.16, AMIRTHAM AVENUE, BARANI STREET, BARATHI NAGAR, VELACHERY, CHENNAI (IMPLEADED AS ADDL R2 AS PER ORDER DTD 8/12/23 IN CRL MA 2/23) ``` ``` BY ADVS.A.A.SHIBI MANJUSHA K.U. GAYATHRI A.L. ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S . SMT A A SHIBI DEFACTO COMPLAINANT ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.10642/2023 -:2:- Dated this the 6[th] day of February,2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973,for an order of pre-arrest bail. 2. The petitioners are the accused Nos. 2 & 3 in Crime No.1058/2023 of Munnar Police Station, Idukki, registered against the accused (three in number) for allegedly committing the offences under Sections 406, 420, 464, 465, 468, 471 & 473 read with Section 34 of the Indian Penal Code, 1860. 3. The essence of the prosecution case is that: the accused in furtherance of their common intention to cheat the de-facto complainant and her relatives, had promised them to secure employments in the Postal Department, Income Tax Department and the B.A.No.10642/2023 -:3:- Indian Embassy. Accordingly, the accused Nos. 1 & 2 received an amount of Rs.44,10,000/- from the de-facto complainant and her husband’s brother to their bank accounts during the period from 03.03.2019 to 07.11.2023. Thereafter, they forged the appointment letters and did not secure the employment. It is further alleged that the fourth accused offered to sell his land and pay off the de-facto complainant the money that was received by the accused Nos.1 & 2. Till date, the accused have not returned the money received from the de-facto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri. Nireesh Mathew, the learned counsel appearing for the petitioners, Smt. Seetha. S. the learned Public Prosecutor appearing for the first respondent and Smt. A.A. Shibi, the learned counsel appearing for the de-facto complainant/intervenor. 5. The learned counsel appearing for the B.A.No.10642/2023 -:4:- petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. The petitioners have no role in the consultancy service that was conducted by the first accused. The entire transaction was between the de-facto complainant and the first accused. The petitioners have been falsely implicated in the crime. They are willing to co-operate with the investigation. The petitioners are ladies. At any rate, the petitioners custodial interrogation is not necessary. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She contended that the petitioners have actively involved in the crime along with the other accused. She submitted that the accused Nos.1 & 2 received an amount of Rs.44,10,000/- from the victim. The investigation has revealed that an amount of Rs.1,10,000/- was transferred from the bank account of the de-facto complainant to the bank account of the B.A.No.10642/2023 -:5:- second accused. The investigation in the case is in progress. The first accused is still at large. If the petitioners are granted an order of pre-arrest bail, it would certainly hamper with the investigation. Hence, the application may be dismissed. 7. The learned counsel appearing for the de-facto complainant also opposed the application. She submitted that the accused have swindled her hard earned money of Rs.44,10,000/-. There is substantial materials to establish that the accused have received the money from the de-facto complainant and her relatives. If the petitioners are granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 8. The prosecution allegation is that the accused Nos. 1& 2 had promised the de-facto complainant and her relatives that they would secure jobs for them in B.A.No.10642/2023 -:6:- the Postal Department, Income Tax Department and the Indian Embassy. Accordingly, an amount of Rs.44,10,000/- was received by them during the period from 03.03.2019 to 07.11.2023. It is revealed in the investigation that Rs.1,10,000/- was credited to the bank account of the second petitioner. Although the learned counsel appearing for the first petitioner submitted that the amount has been re-transferred to the account of the de-facto complainant, that is the matter to be decided at the time of trial. 9. 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 B.A.No.10642/2023 -:7:- 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; (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 B.A.No.10642/2023 -:8:- 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 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. ## 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 B.A.No.10642/2023 -:9:- 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. 11. After bestowing my anxious consideration to the facts, materials placed on record, the rival submissions made across the Bar, the law on the point and particularly taking note of the fact that the first accused is still at large, that an amount of Rs.1,10,000/- is seen transferred to the bank account of the first petitioner/ second accused and the specific overt act alleged against the second accused, that their custodial interrogation is necessary, that the recovery is to be effected, I am of the definite view that the first petitioner/ second accused is not entitled to an order of pre-arrest bail. On the contrary, taking into account the fact that there is no specific overt act alleged or B.A.No.10642/2023 -:10:- any material to establish the role of the second petitioner/third accused in the crime, and that she is a lady who is now aged 61 years, I am of the view that `.` she is entitled to an order of pre-arrest bail 12. In the result; - (a) The bail application filed by the first petitioner/second accused is dismissed; - (b) The bail application filed by the second petitioner / third accused is allowed subject to the following conditions; - (i) The second petitioner is directed to surrender before the Investigating Officer within ten days from today. - (ii) In the event of the second petitioner's arrest, the Investigating Officer shall produce her before the jurisdictional court on the date of surrender itself. - (iii) On such production, the jurisdictional court shall release the second petitioner on bail on her executing a bond for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the B.A.No.10642/2023 -:11:- like amount each, to the satisfaction of the jurisdictional court; - (iv) The second petitioner shall co-operate with the investigation and make herself available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; - (v) The second petitioner shall not intimidate witnesses or interfere with the investigation in any manner; - (vi) The second petitioner shall not get involved in any other offence while on bail. - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. B.A.No.10642/2023 -:12:- - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the second petitioner even while the second petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State(NCT of Delhi) and Anr.** [2020 (1) KHC 663]. - (x) Nonetheless, I direct that, if the first petitioner surrenders before the Investigating Officer within 10 days from today, she shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the first 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 as expeditiously as possible. If the first petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the B.A.No.10642/2023 -:13:- first petitioner as if no order has been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** DST/06.02.24 //True copy// P.A. To Judge