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High Court of KeralaSingle JudgeBAIL GRANTED / Pre-arrest bail granted with con...

K.S. Sanjeev v. State of Kerala and The Manager, Canara Bank

Case / Petition Number:BAIL APPL. NO. 1814 OF 2024

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2024-06-03
Court Decision / Holding
The application is allowed; pre-arrest bail granted with conditions: surrender before the Investigating Officer within 10 days; bond for Rs.50,000 with two solvent sureties; petitioner to appear for interrogation as directed; no inducement or tampering with witnesses; surrender of passport if applicable; no involvement in other offences; observations not to be deemed as merits of the case. The court also cites guidance from Sushila Aggarwal on bail conditions.
Final Disposition
BAIL GRANTED / Pre-arrest bail granted with conditions for the petitioner

Parties to the Case

Appellants / Petitioners

  • K.S. Sanjeev

Respondents

  • State of Kerala
  • The Manager, Canara Bank

Legal Representation & Advocates

Counsels for Petitioners

  • • P. T. Sheejish

Counsels for Respondents

  • • Gopikrishnan Nambiar M
  • • K. John Mathai
  • • Joson Manavalan
  • • Kuriyan Thomas
  • • Pauloose C. Abraham
  • • Raja Kannan
  • • R. Chethan Krishna

Case Synopsis & Summary

K.S. Sanjeev, the second accused in Crime No.178/2024 of Arthungal Police Station, Alappuzha, filed Bail Application under Section 438 CrPC before the Kerala High Court, Ernakulam. The prosecution alleges theft of movable property after the Canara Bank, the secured creditor, invoked the SARFAESI Act and took possession; the movable property allegedly belonged to the petitioner, while the immovable asset is claimed by the bank. The petitioner contends that the FIR lacks incriminating materials against him and that, per Annexure A1, only immovable property was mortgaged to the bank, with the movable property in his possession, so Section 379 IPC would not be attracted. He asserts custodial interrogation is unnecessary and seeks pre-arrest bail on exceptional grounds. The Public Prosecutor opposes bail, arguing ongoing investigation and potential interference; the bank’s counsel also contends custodial interrogation and recoveries are necessary. On 3 April 2024, it was stated that the movable property does not form part of the secured asset under the loan agreement. After evaluating the materials, the court found that only the immovable property was mortgaged and held that, prima facie, the offence under Section 379 IPC may not lie against him, though this is a matter for trial. The court granted pre-arrest bail, subject to conditions including surrender within 10 days, bond of Rs.50,000 with two sureties, appearance for interrogation, non-inducement, passport surrender, and prohibition from other offences; observations are not merits-based. It cites Sushila Aggarwal for guidance on bail conditions.

Provisions of Law Cited

Section 438 of the Code of Criminal Procedure (CrPC)Section 379 read with Section 34 of the Indian Penal Code (IPC)SARFAESI Act

Legal Doctrines & Maxims

  • Exceptional grounds to invoke the extraordinary jurisdiction under Section 438 CrPC
  • Guidelines on bail and investigation from Sushila Aggarwal v. State (NCT of Delhi) and another (2020) 1 KHC 663

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends innocence and asserts the FIR was registered without incriminating materials against him. He points to Annexure A1 showing immobilization of immovable property owned by the bank, while the movable property allegedly belongs to him; thus, he argues Section 379 IPC cannot be attracted. He stresses that custodial interrogation is unnecessary and seeks pre-arrest bail on exceptional grounds, urging that arrest would impede legitimate defense and investigation.

Contentions of Respondents

The Public Prosecutor opposes bail, citing ongoing investigation and possible obstruction if released. The bank’s counsel argues custodial interrogation and recovery are essential; the movable property’s status is contested; later materials suggest movable property does not form part of the secured asset, influencing the court’s view on the applicability of Section 379 IPC and the necessity of custodial custody.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Sushila Aggarwal v. State (NCT of Delhi) and another2020 (1) KHC 663PositiveUsed as authority supporting that investigations and recoveries may proceed while an accused is on bail and to guide the formulation of bail conditions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 1814 OF 2024 ``` ``` CRIME NO.178/2024 OF ARTHUNGAL POLICE STATION, ALAPPUZHA ``` ## **`PETITIONER/ACCUSED:`** ``` K.S. SANJEEV, AGED 54 YEARS S/O C.V.SUSEELAN, KONCHERRIL HOUSE, CHERTHALA SOUTH MURI, CHERTHALA SOUTH VILLAGE, CHERTHALATALUK, ALAPPUZHA DISTRICT, PIN - 688524 BY ADV P.T.SHEEJISH ``` ## **`RESPONDENTS/STATE/COMPLAINANT:`** |**`1`**|**`STATE OF KERALA,`**| |---|---| ||**`REPRESENTED BY PUBLIC PROSECUTOR,`**| ||**`HIGH COURT OF KERALA,`**| ||**`ERNAKULAM, PIN - 682031`**| |**`2`**|**`THE MANAGER,`**| ||**`CANARA BANK, MULLAKKAL BRANCH,`**| ||**`ARTHUNGAL, ALAPPUZHA DISTRICT, PIN - 688011`**| ||**`BY ADVS.`**| ||**`GOPIKRISHNAN NAMBIAR M`**| ||**`K.JOHN MATHAI(K/413/1984)`**| ||**`JOSON MANAVALAN(J-526)`**| ||**`KURYAN THOMAS(K/131/2003)`**| ||**`PAULOSE C. ABRAHAM(MAH/58/2006)`**| ||**`RAJA KANNAN(K/356/2008)`**| ||**`R.CHETHAN KRISHNA(K/646/2013)`**| ## **`OTHER PRESENT:`** ## **`SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1814 of 2024 ## -:2:- ## **O R D E R** Dated this the 3[rd] day of June, 2024 The application is filed under Section 438 of the Code of Criminal Procedure for an order of pre-arrest bail. 2. The petitioner is the second accused in Crime No.178/2024 of the Arthungal Police Station, Alappuzha, registered against the accused for allegedly committing the offences punishable under Section 379 r/w Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: the second respondent bank had initiated proceedings under the SARFAESI Act against the petitioner to recover the money that was due from him. However, after taking possession of the secured assets, the accused had committed theft of the movable property belonging to B.A.No.1814 of 2024 ## -:3:- the second respondent/defacto complainant. Thus, the accused has committed the above offences. 4. Heard; Sri.P.T. Sheejish, learned counsel for the petitioner, Smt. Seetha. S, learned Public Prosecutor and Sri.M. Gopikrishnan Nambiar, the learned Standing Counsel for the second respondent/defacto complainant. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The Investigation Officer has deliberately registered the FIR without any incriminating materials against the petitioner. In fact, as per Annexure A1 possession notice, it is only the immovable property which belongs to the second respondent. The movable property belongs to the petitioner. Therefore, the offence under Section 379 of the IPC will not be attracted. Hence, the application may be allowed. ## B.A.No.1814 of 2024 -:4:- 6. The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. If the petitioner is granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. 7. The learned counsel for the second respondent also opposed the application. He submitted that the petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. 8. When the application came up for consideration on 03.04.2024, the learned counsel appearing for the second respondent, on instructions, submitted that the movable property does not form a part of the secured asset as per the agreement executed between the parties. ## B.A.No.1814 of 2024 -:5:- 9. The prosecution allegation against the petitioner is that he committed theft of the movable property which was taken possession by the second respondent. 10. On an evaluation of the materials placed on record, it can be gathered that only the immovable property was mortgaged to the second respondent as per the agreement. Therefore, prima facie, whether the offence under Section 379 of the IPC will stand attracted against the petitioner will have to be considered. Nonetheless, that is a matter to be investigated and decided at the time of the trial. But I am of the view that the petitioner’s custodial interrogation is not necessary. 11. On an over all appreciation of the facts, the rival submissions made across the Bar, and the materials placed on record, I find that the petitioner has made out exceptional grounds to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is a fit case to grant an order of B.A.No.1814 of 2024 ## -:6:- pre-arrest bail. In the result, the application is allowed subject to the following conditions: i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like amount each; iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. iv) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any B.A.No.1814 of 2024 ## -:7:- manner, whatsoever; v). The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before said court within the said period; vi). The petitioner shall not get involved in any other offence while on bail; (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. viii). Applications for deletion/modification of the bail conditions shall also be filed before the court below. ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the B.A.No.1814 of 2024 ## -:8:- information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].** (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case. Sd/- mtk/03.06.24 **C.S.DIAS,JUDGE**