Kripesh K., Abhinav & Saharsh Hari Nayanar v. State of Kerala and Sinoy Alex (B.A. No. 10809 of 2023)

# **`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. 10809 OF 2023 CRIME NO.1371/2023 OF PAYYANNUR POLICE STATION, KANNUR ``` ## **`PETITIONERS/ACCUSED:`** ``` 1KRIPESH. K, AGED 34 YEARS S/O. KARUNAKARAN, KOOVA HOUSE, MADAYI TERU, PAZHAYANGADI. P.O, KANNUR DISTRICT, PIN - 670303 2 ABHINAV, AGED 29 YEARS S/O. ARAVINDAKSHAN.K, AKSHARAM, KALATHERA, OLAT, KODAKKAD, KASARGOD DISTRICT, PIN - 671310 3SAHARSH HARI NAYANAR, AGED 34 YEARS SAHARSH HARI NAYANAR, S/O. V.V. HARIDAS NAYANAR, NEAR S.S. TEMPLE, PAYYANUR P.O, KANNUR DISTRICT, PIN - 670307 ``` ``` BY ADVS. M.ANUROOP MURSHID ALI M. ``` ## **`RESPONDENTS:`** ``` 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 SINOY ALEX, AGED 31 YEARS S/O. KL ALEX, NEST KARIPPAI LANE, ``` B.A.No.10809 of 2023 -:2:- ``` CHELAKKOTTUKARA, KOKKAN HOUSE, DEPUTY MANAGER MAXVALUE INVESTMENT LTD, 1ST FLOOR CK PLAZA,KOORKKANCHERY, THRISSUR DISTRICT, PIN - 671314 ``` ``` BY ADVS. VINAY MATHEW JOSEPH M.A.SHAJI K.J.KARTHIKA ``` ## **`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: ``` B.A.No.10809 of 2023 ## -:3:- ## **O R D E R** Dated this the 16[th] day of February, 2024 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 petitioners are the accused 1 to 3 in Crime No.1371/2023 of the Payyanur Police Station, Kannur, registered against them for allegedly committing the offences punishable under Sections 420, 406 and 120(B) r/w Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: the accused were running a dealership of IGNITE TVS for sale and service of TVS Scooters. The accused 4 to 14 had booked scooters from the showroom of the accused 1 to 3. The de facto complainant had given a loan of Rs.9,66,070/- to the accused 4 to 14 to buy the scooters. However, the accused cheated the de facto complainant B.A.No.10809 of 2023 ## -:4:- without purchasing the vehicles and misappropriated the loan amount sanctioned by the de facto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri. M. Anuroop, the learned counsel appearing for the petitioners, Sri. C.S, Hrithwik., the learned Senior Public Prosecutor appearing for the State and Sri. Vinay Mathew Joseph, the learned counsel appearing for the second respondent/ the defacto complainant. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. Even if the allegations in Annexure A1 are taken on their face value, the same will not attract the offences under Sections 406 and 420 of the IPC. At any rate, the petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. The petitioners are willing to abide by any condition that may be imposed by this Court and B.A.No.10809 of 2023 ## -:5:- cooperate with the investigation. Hence, the application may be allowed. 6. The learned Public Prosecutor as well as the learned counsel for the second respondent/ the de facto complainant, seriously opposed the application. They contended that the petitioners have misappropriated the money that was sanctioned as a loan for the purchase of the vehicles. The accused 1 to 3, in collusion with the accused 4 to 14, without purchasing the vehicles have misappropriated the loan amount. The petitioners' custodial interrogation is absolutely necessary, and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: B.A.No.10809 of 2023 -:6:- **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 applicant by arresting him or her; (vi) Impact of grant of anticipatory bail B.A.No.10809 of 2023 ## -:7:- 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 unnecessary to travel beyond it and B.A.No.10809 of 2023 ## -:8:- subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 8. 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. 9. 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. B.A.No.10809 of 2023 ## -:9:- 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.” 10. 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 petitioners' custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the petitioners have 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 an order of pre-arrest bail. B.A.No.10809 of 2023 ## -:10:- Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/ 16.02.2024 B.A.No.10809 of 2023 ## -:11:- ## **`APPENDIX OF BAIL APPL. 10809/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1THE TRUE COPY OF THE FIR IN CRIME NO. 1371/2023 OF PAYYANUR POLICE STATION IN KANNUR DISTIRCT DATED 02-11-2023 ``` ## `RESPONDENT ANNEXURES` ``` ANNEXURE R2(B)TRUE COPY OF THE COMPANY DATA OF M/S IGNITE MOTORS PVT. LTD. ANNEXURE R2(A)TRUE COPY OF THE LOAN AGREEMENT OF ACCUSED NO. 12 NEETHU ALONG WITH SUPPORTING DOCUMENTS PROVIDED ```