Johnson P. Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945** ## **BAIL APPL. NO. 1060 OF 2024** **CRIME NO.28/2024 OF KUNNATHUNADU POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **JOHNSON P.THOMAS AGED 49 YEARS S/O.THOMAS, PARACKAL, PAMPAKKUDA P.O, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686667** **BY ADV BALRAM S.A.** ## **RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 THE STATION HOUSE OFFICER KUNNATHUNADU POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682308** ## **OTHER PRESENT:** **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.1060 OF 2024** **2** ## **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 petitioner is the accused in crime No.28/2024 of the Kunnathunadu Police Station, Ernakulam Rural registered against him for allegedly committing the offences punishable under Sections 403, 408, 420 and 477-A of the Indian Penal Code. 3. The crux of the prosecution case is that: the accused was employed in a petroleum retail outlet at Mannoor, in which the defacto complainant was a partner. The accused with an intention to deceive and cheat the firm, caused wrongful loss by misappropriating the amounts paid by the customers by deliberately not maintaining the daybook properly for the period from April 2023 to September, 2023. The accused misappropriated Rs.46,37,677/- and cheated the defacto complainant and the firm, who have sustained a wrongful loss and the accused had made an **BAIL APPL.NO.1060 OF 2024** **3** unlawful gain. Thus, the accused has committed the above offences. 4. Heard Sri.Balram S.A, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime. A reading of Annexure I FIR would show that the allegations levelled against the petitioner will not be attracted. The petitioner was employed in the above petroleum retail outlet for 20 years. It is only because the petitioner decided to leave the firm, the defacto complainant has filed the frivolous complaint against the petitioner. The petitioner's custodial interrogation is not necessary. The petitioner is willing to co-operate with the investigation and abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. **BAIL APPL.NO.1060 OF 2024** **4** 6. The learned Public Prosecutor opposed the application. He contended that the petitioner had misappropriated an amount of Rs.46,37,677/- by falsification of the accounts and by manipulating the computer system. The petitioner was in charge of the computer system. The petitioner's custodial interrogation is necessary and recoveries have to be effected. If the petitioner is let off on bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. On a perusal of the records, it is seen that the petitioner had moved an application for pre-arrest bail before the Court of Session, Ernakulam. But, by Annexure 2 order, the Sessions Court dismissed the application principally on the ground that the witnesses have all stated that they had entrusted the money to the petitioner, that the petitioner's custodial interrogation is necessary and recovery has to be effected. Hence, the petitioner is not entitled to an order of pre-arrest bail. 8. The prosecution allegation against the petitioner is **BAIL APPL.NO.1060 OF 2024** **5** that while he was working as manager in a petroleum retail outlet, he falsified the accounts, manipulated the computer system and misappropriated a total amount of Rs.46,37,677/-. 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 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 **BAIL APPL.NO.1060 OF 2024** **6** 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 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 **BAIL APPL.NO.1060 OF 2024** **7** 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 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. In **P. Chidambaram v. Directorate of Enforcement** [(2019) 9 SCC 24], the Hon'ble Supreme Court has observed thus: “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 **BAIL APPL.NO.1060 OF 2024** **8** 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.” 12. On a consideration of the facts, materials placed on record, the rival submissions made across the Bar, and on comprehending the nature, seriousness and gravity of the economic offences alleged against the petitioners, that the investigation in the case is at the preliminary stage, that the petitioner's custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the petitioner has not made any exceptional grounds 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 **BAIL APPL.NO.1060 OF 2024** **9** an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS JUDGE** **shg**