Karthika Pradeep v. State of Kerala & Others

# **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. 852 OF 2024** ## **CRIME NO.26/2024 OF ERNAKULAM CENTRAL POLICE STATION,** ## **ERNAKULAM** ## **PETITIONER/ACCUSED:** **KARTHIKA PRADEEP, AGED 25 YEARS** **D/O PRADEEP C.T, RESIDING AT LEKSHMI NILAYAM HOUSE, KANNAMCODE, AROOR P.O, PATHANAMTHITTA DISTRICT, PIN - 691523** **BY ADVS. K.MOHAMMED RAFEEQ BIBIN MATHEW P.M.MATHEW AMARNATH R LAL SANALDEV E.P. VISHNUMAYA ANANDAN SONYMON ANTONY AJMAL V. KARIM** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 STATION HOUSE OFFICER, CENTRAL POLICE STATION, ERNAKULAM DISTRICT, PIN - 682018** **3 SULTHANA HABEEB, PALATHINGAL HOUSE,VELLOORKUNNAM MARKET P.O.MUVATTUPUZHA - 686673 IS IMPLEADED AS ADDL. R3 AS PER ORDER DATED 09/02/2024 IN CRL.MA.2/2024.** ## **4 ASHILY A, ANCHUPARAKULAMBU HOUSE,CHITHALI,** ``` 2 ``` ## **B.A. NO.852 of 2024** **KUZHAMANNAM, PALAKKAD, KERALA IS IMPLEADED AS ADDL. R3 AS PER ORDER DATED 09/02/2024 IN CRL.MA.2/2024** **BY ADVS. AMBADI MURALI NIDHIN K.N. NEERAJ T.N. GOPIKRISHNAN R.** ## **OTHER PRESENT:** ## **SR PUBLIC PROSECUTOR SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **B.A. NO.852 of 2024** ``` 3 ``` ## **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 accused in Crime No.26/2024 of the Central Police Station, Ernakulam registered against her for allegedly committing the offences punishable under Sections 406 and 420 of the Indian Penal Code. 3. The crux of the prosecution case is that; the accused was running an Educational Consultancy service under the name ‘Takeoff Overseas Educational The accused had entered into an Consultancy’. agreement with the de facto complainant and her friend, assuring them to secure an employment in the United ``` 4 ``` ## **B.A. NO.852 of 2024** Kingdom. Consequently, the accused collected Rs.5,00,000/- during the period between 29.9.2023 and 6.12.2023 from the de facto complainant and Rs.2,75,000/- from the friend of the de facto complainant. However, the accused failed to secure the employment or return the money. Thus, the accused has committed the above offences. 4. Heard Sri. K.Mohammed Rafeeq, learned counsel appearing for the petitioner, Smt.Seetha S, the learned Senior Public Prosecutor and Sri. Ambadi Murali, the learned counsel appearing for the de facto complainant/intervenor. 5. Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against her. She has been falsely implicated in the crime. In fact, the petitioner had already paid the money that was received from the de facto complainant and her friend to the service provider. **B.A. NO.852 of 2024** ``` 5 ``` It is after the payment was made, the de facto complainant and her friend asked for the return of the money. Since, the application of the de facto complainant and her friend is already being processed, the petitioner is unable to return the money to them. A reading of Annexure 1 FIR would substantiate that the offences under Sections 406 and 420 will not be attracted. 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 there is incriminating materials to establish that the entire amount was paid to the bank account of the petitioner and her involvement in the crime. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of prearrest bail, it would hamper with the investigation. **B.A. NO.852 of 2024** ``` 6 ``` Hence, the application may be dismissed. 7. The learned counsel appearing for the de facto complainant/intervenor also opposed the application. He reiterated the contentions made by the learned Public Prosecutor. He submitted that Annexure R3(f) communication would reveal that the petitioner does not have the requisite licence/permission from the Protector of Emigrants to conduct manpower recruitment. Hence, the application may be dismissed. 8. On a scrutiny of the materials, it is can be deciphered that the petitioner had assured the de facto complainant and her friend that she would secure them employment visas in the United Kingdom. On the said assurance, she received an amount of Rs. 7,75,000/- from them. However, she failed to secure the employment or return the money. 9. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble **B.A. NO.852 of 2024** ``` 7 ``` ## 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; (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 **B.A. NO.852 of 2024** ``` 8 ``` 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 **B.A. NO.852 of 2024** ``` 9 ``` 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 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 **B.A. NO.852 of 2024** ``` 10 ``` 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.” On an anxious consideration of 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 committed by the petitioner, that the investigation in the case is at its preliminary stage, that ``` 11 ``` ## **B.A. NO.852 of 2024** 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. **SD/-** **C.S.DIAS, JUDGE** **rmm/4/3/2024** **B.A. NO.852 of 2024** ``` 12 ``` ## **`APPENDIX OF BAIL APPL. 852/2024`** ## **`PETITIONER ANNEXURES`** ``` Annexure-1TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 26/2024 OF CENTRAL POLICE STATION. ``` ``` Annexure-2 ``` - **`TRUE COPY OF THE ORDER DATED 03.01.2024 IN CRL. M.C NO. 3714/2023 ON THE FILE OF THE HONORABLE DISTRICT AND SESSION'S COURT, ERNAKULAM.`** ## **`RESPONDENT ANNEXURES`** - **`ANNEXURE R3(A)`** - **`TRUE COPY OF THE AGREEMENT DATED 29.09.2023 WITH THE 3RD RESPONDENT`** - **`ANNEXURE R3(B) TRUE COPY OF AGREEMENT DATED 06.11.2023 WITH THE 4TH RESPONDENT`** - **`ANNEXURE R3(C) TRUE COPY OF THE O.S NO.1230/2023 FILED BY THE PETITIONER BEFORE HON'BLE MUNSIFF COURT, ERNAKULAM`** - **`ANNEXURE R3(D) COPIES OF CASH RECEIPTS ISSUED BY THE PETITIONER`** - **`ANNEXURE R3(E) COPIES OF THE CASH RECEIPTS ISSUED BY THE PETITIONER`** ``` ANNEXURE R3(F)COPY OF THE COMMUNICATION FROM THE PROTECTOR OF EMIGRANTS, COCHIN ```