Kannan Thankappan @ Jaison and Jency v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 ``` ``` BAIL APPL.NO.10182 OF 2023 ``` ``` CRIME NO.1936/2023 OF Palarivattom Police Station, Ernakulam ``` ``` -------------- ``` ## **`PETITIONERS :-`** ``` 1KANNAN THANKAPPAN @ JAISON, AGED 40 YEARS S/O.THANKAPPAN, PUTHANPURAKKAL VEEDU KOLONY P.O, PARAKKADAV, THODUPUZHA, IDUKKI DIST, PIN - 685 564 ``` ``` 2JENCY, AGED 35 YEARS W/O.KANNAN THANKAPPAN, PUTHANPURAKKAL VEEDU KOLONY P.O, PARAKKADAV, THODUPUZHA IDUKKI DIST, PIN - 685 564 ``` ``` BY ADVS. V.A.HAKEEM HABNAM HAKEEM NOUSHAD K.H RAJI S. ``` ## **`RESPONDENTS :-`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 STATION HOUSE OFFICER, PALARIVATTOM POLICE STATION, ERNAKULAM, PIN - 682 025`** - **`ADDL.3 NIKHILA AJESH, D/O.AJESH KUMAR, THOPPINAKATH (H), THEKKUPURAM, NORTH PARAVOOR, CHENNAMANGALAM, N.PARAVOOR, ERNAKULAM, PIN - 683 513.`** ``` ADDITIONAL 3RD RESPONDENT IS IMPLEADED AS PER ORDER DATED 4.4.2024 IN CRL.M.A.No.1/2023. ``` ``` BY ADVS. M.G.JEEVAN SANIYA JOSE MAMPILLY(K/929/2019) ``` ``` BAIL APPL.NO.10182 OF 2023 ``` ``` -: 2 :- ``` ## **`OTHER PRESENT:`** ``` SMT.SEETHA S., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.10182 OF 2023 ``` ``` -: 3 :- ``` ## **Dated this the 4[th] day of April, 2024** ## **ORDER** 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 1 and 2 in Crime No.1936/2023 of Palarivattom Police Station, Ernakulam, registered against them for allegedly committing the offences punishable under Sections 406 and 420 r/w Section 34 of the Indian Penal Code. 3. The essence of the prosecution case is that; the accused, in furtherance of their common intention, to deceive the de facto complainant and to make wrongful gain, offered an employment Visa to the de facto complainant. The de facto complainant believing the words of the accused transferred Rs.2,05,263/- to the accused. The accused did not secure the Visa or repay the amount. Thus, the accused committed the above offences. ``` BAIL APPL.NO.10182 OF 2023 ``` ``` -: 4 :- ``` 4. Heard; Sri.V.A.Hakeem, the learned counsel for the petitioners, Smt.Seetha S, the learned Senior Public Prosecutor and Sri.M.G.Jeevan, the learned counsel appearing for the de facto complainant as the 3rd respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of the First Information Report would clearly reveal that the offences under Sections 406 and 420 will not be attracted **`.`** In fact the petitioners had made arrangements for the employment Visa of the de facto complainant as evidenced by Annexure A4 document **`.`** However, the de facto complainant was not willing to accept Annexure A4 Visa. The petitioners have no intention to cheat the de facto complainant **`.`** The petitioners are willing to co-operate with the investigation and abide by any stringent condition that may be imposed by this Court. The petitioners' custodial interrogation is ``` BAIL APPL.NO.10182 OF 2023 ``` ``` -: 5 :- ``` 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 submitted that the petitioners are persons with criminal antecedents. In fact, in one of the cases, the 1st petitioner was enlarged on bail by the Judicial First Class Magistrate Court-IX, Ernakulam. However, the 1st petitioner thereafter absconded. As per the information received by the Investigating Officer, both the petitioners are absconding. The petitioners have cheated several persons in a similar manner and have misappropriated their money. The petitioners' custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would certainly torpedo the investigation. Hence, the application may be dismissed. 7. The learned counsel appearing for the intervener also opposed the application. He submitted that an amount of Rs.2,05,263/- was paid to the petitioners to ``` BAIL APPL.NO.10182 OF 2023 ``` ``` -: 6 :- ``` secure an employment Visa. They not only failed to secure the employment Visa but also refused to repay the amount. The petitioners had moved a similar application before the Court of Sessions, which was dismissed by Annexure A9 order finding that the petitioners' custodial interrogation is necessary. Hence, the application is only to be dismissed. 8. The prosecution allegation against the petitioners is that, they offered an employment Visa to the de facto complainant and received a total amount of Rs.2,05,263/from her. However, they failed to secure the Visa and also did not return the money. 9. It is now revealed that the petitioners are involved in six other crimes of similar nature and in one of the cases even though the 1st petitioner was enlarged on bail, he has absconded and misused his liberty. 10. 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 ``` BAIL APPL.NO.10182 OF 2023 ``` ``` -: 7 :- ``` 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; (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; ``` BAIL APPL.NO.10182 OF 2023 ``` ``` -: 8 :- ``` (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 ``` BAIL APPL.NO.10182 OF 2023 ``` ``` -: 9 :- ``` CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferpower and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 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 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. 12. In **Srikant Upadhyay** v. **State of Bihar** [2024 KHC OnLine 6137], the Hon’ble Supreme Court, after referring to the earlier precedents on the point, has succinctly laid down the law 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 ``` BAIL APPL.NO.10182 OF 2023 ``` ``` -: 10 :- ``` 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 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). **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 xxx xxx xxx” ``` BAIL APPL.NO.10182 OF 2023 ``` ``` -: 11 :- ``` On a consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, seriousness and gravity of the economic offences alleged against the petitioners, that the petitioners' custodial interrogation is necessary, recovery is to be effected and the petitioners have criminal antecedents, I am of the definite view that the petitioners have not made any exceptional ground 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 orders of pre-arrest bail. Consequently, the bail application is dismissed. **Sd/C.S.DIAS, JUDGE** Jvt/5.4.24 ``` BAIL APPL.NO.10182 OF 2023 ``` ``` -: 12 :- ``` ## **`APPENDIX OF BAIL APPL. 10182/2023`** ``` PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE CITIZEN COPY OF THE FIR IN CRIME NO. 1936/2023 OF PALARIVATTOM POLICE STATION, ERNAKULAM DISTRICT DATED 24.8.2023 ``` |**`Annexure A1`**|**`TRUE COPY OF THE CITIZEN COPY OF THE FIR`**<br>**`IN CRIME NO. 1936/2023 OF PALARIVATTOM`**<br>**`POLICE STATION, ERNAKULAM DISTRICT DATED`**<br>**`24.8.2023`**| |---|---| |**`Annexure A2`**|**`TRUE COPY OF THE REGISTRATION CERTIFICATES`**| ||**`ISSUED UNDER SECTION 11 OF THE EMIGRATION`**| ||**`ACT 1983 IN FAVOR OF THE PETITIONERS`**| |**`Annexure A3`**|**`TRUE COPY OF THE APPLICATION FOR LONG STAY`**| ||**`VISA DATED 26.4.2021`**| |**`Annexure A4`**|**`TRUE COPY OF THE COPY THE REQUEST FOR`**| ||**`EMPLOYEE CARD`**| |**`Annexure A5`**|**`TRUE COPY THE REQUEST FOR EMPLOYMENT OFFER`**| ||**`DATED 1.6.2022`**| |**`Annexure A6`**|**`TRUE COPY OF THE TRAVEL DOCUMENT AND THE`**| ||**`COPY OF THE INSURANCE`**| |**`Annexure A7`**|**`TRUE COPY OF THE AIR TICKET DATED 8.6.2022`**| |**`Annexure A8`**|**`TRUE COPY OF THE OFFICIAL COMMUNICATION`**| ||**`DATED 10/1/2022`**| |**`Annexure A9`**|**`TRUE COPY OF THE ORDER DATED 27.10.2023 IN`**| ||**`CRL MC NO 2768/2023 OF THE COURT OF`**| ||**`SESSIONS, ERNAKULAM`**|