Lakshmi Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945** ## **BAIL APPL. NO. 613 OF 2024** **CRIME NO.0003/2024 OF MUVATTUPUZHA POLICE STATION, ERNAKULAM** ## **PETITIONER/S:** **LAKSHMI NAIR AGED 26 YEARS D/O SAHADEVAN PILLAI, VINAYAKAM HOUSE, THRIKKARIYOOR PO, PIN - 686692** **BY ADVS. GAYATHRI MURALEEDHARAN ARATHY P.** ## **RESPONDENTS/DEFACTO COMPLAINANT-INTERVENOR:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **BY ADVS. S.SREEDEV ENOCH DAVID SIMON JOEL RONY JOSE LEO LUKOSE KAROL MATHEWS SEBASTIAN ALENCHERRY DERICK MATHAI SAJI KARAN SCARIA ABRAHAM** **OTHER PRESENT:** **SR PP SMT SEETHA S .** **SRI SREEDEV FOR DEFACTO-COMPLAINANT/INTERVENOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.613 OF 2024** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in crime No.3/2024 of the Moovattupuzha Police Station, Ernakulam, registered against the accused (2 in number) for allegedly committing the offences punishable under Secs.408, 420, 468, 477A and 120-B of the Indian Penal Code. The petitioner was arrested on 14.01.2024. 2. The gist of the prosecution case is that: while the first accused was working in a company named 'Ayurveda Medical Equipment', she directed the customers of the said company to send money to the bank account of the second accused. Accordingly, the accused 1 & 2 had made unlawful gain to tune of nearly Rs.1 crore. Thus, the accused have committed the above offences. 3. Heard; Smt. Gayathri Muraleedharan, the learned counsel appearing for the petitioner and Smt.Seetha S., the **BAIL APPL.NO.613 OF 2024** **3** learned Public Prosecutor appearing for the respondent and Sri.S.Sreedev, the learned counsel appearing for the intervenor/defacto complainant. 4. The learned counsel appearing for the petitioner submitted that the petitioner is absolutely innocent of the accusations levelled against her. She is falsely implicated in the crime. It was the mother of the petitioner – first accused, who was employed in the company of the defactocomplainant. Petitioner is unaware of the transactions that took place. At any rate, the petitioner is a woman and is a medical graduate. The petitioner has been in judicial custody since 15.01.2024. The investigation in the case, insofar as the petitioner, is practically complete. The recovery has been effected. Therefore, the continued detention of the petitioner is unnecessary. Hence, the petitioner may be enlarged on bail. 5. The learned Public Prosecutor seriously opposed the application. She contended that the petitioner and the first accused have misappropriated nearly Rs.1 crore from **BAIL APPL.NO.613 OF 2024** **4** the account of the defacto-complainant. The first accused had transferred an amount of Rs.16,76,947/- during the period from 23.02.2021 to 01.01.2024 to the bank account of the petitioner. The investigation in the case is in progress. The recoveries have not been effected. The petitioner was arrested only on 14.01.2024. If the petitioner is let off on bail, there is every likelihood of her tampering with the evidence and intimidating the witnesses. Moreover, it will also affect the full and proper investigation. Hence, the application may be dismissed. 6. The learned counsel for the intervenor also opposed the application. He contended that the petitioner is a beneficiary of the cheating that was committed by her mother – the first accused. More than Rs.1 crore has been misappropriated by the first accused and the same has been transferred to the bank account of the second accused/petitioner. Many matters have to be unearthed. Therefore, the application may be dismissed. 7. On a scrutiny of the materials placed on record, it is **BAIL APPL.NO.613 OF 2024** **5** seen that the principle allegation against the petitioner/2[nd] accused is that first accused, while working with the defactocomplainant, had misappropriated money due to the defactocomplainant by directing the customers to transfer the amount to the bank account of the second accused/petitioner. The petitioner was arrested on 14.01.2024, which is less than a month. The learned Public Prosecutor submitted that the investigation is in progress and recoveries have to be effected. 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 Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC **BAIL APPL.NO.613 OF 2024** **6** (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 **BAIL APPL.NO.613 OF 2024** **7** 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 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** **BAIL APPL.NO.613 OF 2024** **8** **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. 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** **ac** cused 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. **BAIL APPL.NO.613 OF 2024** **9** 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.” 11. After bestowing my anxious consideration to the materials placed on record, the rival submission made across the Bar, taking into account the nature, gravity, and seriousness of the offences alleged against the petitioner, that the investigation in the case is still in progress, the recoveries have to be made, I am of the definite view that the petitioner is not entitled to be released on bail at this stage. Resultantly, the bail application is dismissed. **Sd/-** **C.S.DIAS** **JUDGE** ## **shg**