K.P. Beena v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 ``` ## `BAIL APPL. NO. 1297 OF 2024` ``` CRIME NO.1105/2022 OF ADOOR POLICE STATION, PATHANAMTHITTA ``` ## `PETITIONER:` ``` K.P.BEENA AGED 52 YEARS W/O.P.MURALEEDHARAN, MURALIKA HOUSE, PUTHUKKODY ROAD, MANJERI, MALAPPURAM DISTRICT., PIN – 676121 ``` ``` BY ADVS.M.SASINDRAN SATHEESHAN ALAKKADAN ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` 2THE STATION HOUSE OFFICER ADOOR POLICE STATION PATHANAMTHITTA DISTRICT, PIN – 691523 ``` ## `OTHER PRESENT:` ## `SR PP SMT NEEMA T V` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1297/2024 -:2:- Dated this the 26[th] day of February,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 fourth accused in Crime No.1105/2022 of Adoor Police Station, Pathanamthitta, registered against the accused (five in number), for allegedly committing the offences punishable under Sections 420, 465, 468 & 471 read with Section 34 of the Indian Penal Code, 1860. 3. The gravamen of the prosecution case is that: in April 2018, the accused Nos. 1 to 3 had approached the de-facto complainant and fraudulently promised that they would secure him a loan to purchase an Aluminium Fabrication Company abroad. Accordingly, the accused 1 to 3 took the title deeds of his property B.A.No.1297/2024 -:3:- having an extent of 1 acre and 28 cents, and in furtherance of their common intention with the other accused, created an equitable mortgage with the South Indian Bank, where the fifth accused was the Branch Manager. They took the loan in the name of the fourth accused/petitioner, by making her the main applicant and the complainant as the guarantor, that too by fabricating and concocting the documents of the complainant, without his knowledge. Consequently, an amount of Rs.93,00,000/- was sanctioned in favour of the fourth accused, who in turn transferred the amount to accused 1 to 3. The accused did not pay any amount to the complainant or return the title deeds. Thus, the accused caused a loss of Rs.1,60,00,000/- to the de-facto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri. M.Sasindran, the learned counsel appearing for the petitioner and Smt.Neema T.V., the B.A.No.1297/2024 -:4:- 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 her. The petitioner is actually a victim of the entire episode. It was the accused Nos.1 to 3, who in collision with the fifth accused, manipulated and fabricated the documents and have cheated the petitioner. The petitioner had lent her name for securing a loan for her business purpose. It was on the basis of a proper understanding with the complainant that the title deeds were handed over. The petitioner does not have any criminal antecedents. The custodial interrogation of the petitioner is not necessary. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and also co-operate with the investigation. Hence, the applications may be allowed. B.A.No.1297/2024 -:5:- 6. The learned Public Prosecutor seriously opposed the application. She contended that the accused Nos.1 to 5 have, in collision and in furtherance of their common intention, cheated the de-facto complainant by manipulating and fabricating the documents have siphoned off the entire loan amount. The loan was sanctioned in the name of the petitioner, on the strength of the title deeds of the complainant, but, the entire amount was transferred to the petitioner’s bank account and she in turn transferred the amount to the accused Nos.1 to 3. The petitioner's custodial interrogation is necessary, recovery is to be effected and the investigation is only at its nascent stage. If the petitioner is granted an order of pre-arrest bail, it would hamper with the full and proper investigation of the case. 7. The prosecution allegation is that, the accused had promised the de-facto complainant of B.A.No.1297/2024 -:6:- securing a loan for his business purpose. However, they in furtherance of their common intention got the loan sanctioned in the name of the petitioner by using the title deeds of the complainant, after fabricating and manipulating the documents of the complainant and, thereafter, when the loan was sanctioned in favour of the petitioner, she transferred the money to the accused Nos.1 to 3. The complainant was not paid any money or has his title deeds been returned. Thus, the accused have committed the above offences. 8. 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.1297/2024 -: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.1297/2024 -: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. 9. 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.1297/2024 -: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. ## 10. 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 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.” B.A.No.1297/2024 -:10:- 11. On an anxious consideration to the facts, rival submissions made across the Bar, the materials placed on record, and on comprehending the nature, gravity, and seriousness of the economic offences alleged against the petitioner, that the investigation in the case is only at its nascent stage, that the custodial interrogation of the petitioner is necessary and that recovery is to be effected, I am prima-facie satisfied that the offences are attracted, and that the petitioner has not made out exceptional circumstances to invoke the extra-ordinary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, she shall be interrogated and, thereafter, be produced before the jurisdictional Court B.A.No.1297/2024 -:11:- on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** DST/26.02.24 //True copy// P.A. To Judge