Lalkrishna E.A v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945 ``` ## **`BAIL APPL. NO. 10886 OF 2023`** ## **`CRIME NO.1205/2023 OF Narakkal Police Station, Ernakulam`** ## **`PETITIONER/S:`** ``` LALKRISHNA E.A, AGED 28 YEARS ERIMAL HOUSE, POOPATHY P.O, POYYA, THRISSUR, PIN - 680733 ``` ``` BY ADV DEEPAK MOHAN ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` SMT.NEEMA.T.V, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.10886 of 2023 -:2:- ## **C.S.DIAS,J** **======================** **Bail Application No.10886 of 2023 ----------------------------------Dated this the 24[th ] day of January, 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 third accused in Crime No.1205/2023 of the Njarackal Police Station, Ernakulam, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 420 and 468 read with Sec.34 of the Indian Penal Code, 1860, _(‘IPC’, for short)._ B.A.No.10886 of 2023 -:3:- 3. The gist of the prosecution case is that: the accused assured the husband of the defacto complainant that they would arrange an employment VISA to settle down in France. Accordingly, they collected an amount of Rs.8,35,000/-. But, the accused did not arrange the VISA or return the amount. Thus, the accused have committed the above offences. 4. Heard; Sri. Deepak Mohan, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no specific overt act alleged against the petitioner. The petitioner is a law abiding citizen and is willing to abide by any stringent B.A.No.10886 of 2023 ## -:4:- condition that may be imposed by this Court. The petitioner is even willing to return the money to the defacto complainant. Hence, the application may be allowed. 6. The learned Public Prosecutor vehemently opposed the application. She contended that an amount of Rs.3,00,000/- was transferred to the account of the petitioner. Therefore, the petitioner's complicity in the crime is quite evident. The petitioner's custodial interrogation is necessary and the recovery is to be effected. Hence, letting off the petitioner on bail 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 B.A.No.10886 of 2023 -:5:- ## 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 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 B.A.No.10886 of 2023 -:6:- 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 subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. B.A.No.10886 of 2023 -:7:- 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. After bestowing my anxious consideration to the materials placed on record, particularly taking into account the nature, gravity and seriousness of the offence alleged against the petitioner, that the investigation in the case is in progress and the petitioner's custodial interrogation is B.A.No.10886 of 2023 -:8:- necessary, prima facie it is found that money was transferred to the account of the petitioner, I am of the definite view that the petitioner is not entitled 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. Consequently, the bail application is dismissed. 11. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court 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 and as expeditiously as B.A.No.10886 of 2023 -:9:- possible. 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** Sks/ 24.1.2024 B.A.No.10886 of 2023 ## -:10:- ## **`APPENDIX OF BAIL APPL. 10886/2023`** ``` PETITIONER ANNEXURES Annexure ATRUE COPY OF THE RECEIPT DATED 21.10.2023 OF SBI POYYA BRANCH Annexure BTRUE COPY OF THE ORDER DATED 01.12.2023 IN CRL.MC NO. 3328/2023 OF THE DISTRICT AND SESSIONS COURT, ERNAKULAM ```