K. L. Punith v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 5[TH] DAY OF JUNE 2024 / 15TH JYAISHTA, 1946 BAIL APPL. NO. 1192 OF 2024 ``` ``` CRIME NO.666/2023 OF NOOLPUZHA POLICE STATION, Wayanad AGAINST THE ORDER/JUDGMENT DATED 18.01.2024 IN CRMC NO.30 OF 2024 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ``` ``` PETITIONER/ACCUSED: ``` ``` K.L PUNITH, AGED 23 YEARS S/O. LOKESH K.G, RESIDING AT 155, TUMKUR ROAD, NEAR VENKATESHWARA PRINTERS, KUDUR,RAMANGARA, KARNATAKA, PIN - 561101 ``` ``` BY ADVS. SUNIL KUMAR A.G GEORGE MATHEW MATHEW K.T. GEORGE K.V. STEPHY K REGI ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER, RNOOLPUZHA POLICE STATION, WAYANAD DISTRICT - 673 595, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 673595`** - **`3 RAFEEK, S/O ABDULLA,PARAKKAL HOUSE, CHULLIYODE,NENMENI P.O., WAYANAD DISTRICT (IS IMPLEADED R3 AS PER ORDER DATED 11-4--24 )`** ``` BY ADV No Advocate ``` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1192 of 2024 -:2:- Dated this the 5[th] day of June, 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 sole accused in Crime No.666/2023 of the Noolpuzha Police Station, Wayanad, registered against him for allegedly committing the offences punishable under Section 420 of the Indian Penal Code (in short, IPC) and Section 69D of the Information Technology Act. 3. The crux of the prosecution case is that: the accused with an intention to cheat the de facto complainant, had unloaded an advertisement on Facebook promising to deliver five alloy wheels for Rs.25,000/-. Based on the advertisement, the de facto complainant paid an amount of Rs.25,000/- on B.A.No.1192 of 2024 -:3:- 21.08.2023 and 22.8.2023 through Phonepay. However, the accused failed to deliver the alloy wheels as promised. Thus, the accused has committed the above offences. 4. Heard; Sri.Sunil Kumar A.G., the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of the materials on record would substantiate that the offence under Section 420 of the IPC will not be attracted. The petitioner has settled the dispute with the de facto complainant out of court and the de facto complainant does not have any subsisting grievance against the petitioner. Therefore, the petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the B.A.No.1192 of 2024 -:4:- application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that the Investigating Officer is unaware as to any settlement arrived at between the parties. The petitioner’s custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. 7. When the application came up for consideration on 23.4.2024, this Court directed the petitioner to surrender before the Investigating Officer within ten days from the date of order and subject himself to interrogation. 8. Today, when the application was taken up for consideration, the learned Public Prosecutor submitted that the petitioner has not complied with the order dated 23.4.2024. 9. It is seen that the petitioner has moved a B.A.No.1192 of 2024 -:5:- similar application before the Court of Session, Kalpetta by filing Crl.M.C.No.30/2024. The learned Sessions Judge, by order dated 18.4.2024 dismissed the petitioner’s application on the ground that the petitioner’s custodial interrogation is necessary and there are sufficient materials to establish that the petitioner’s involvement in the case. 10. Recently, 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 B.A.No.1192 of 2024 -:6:- 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 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” ## 11. 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 B.A.No.1192 of 2024 -:7:- 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. On an anxious consideration of the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, that the petitioner has not complied with the interim order dated 23.4.2024 and further that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am satisfied that the petitioner has not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I am not inclined to exercise the discretionary B.A.No.1192 of 2024 -:8:- powers of this Court to grant the petitioner an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS,JUDGE** rmm/5/6/2024