Lijo S.V 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. 9232 OF 2021 ``` ``` CRIME NO.678/2021 OF NEDUPUZHA POLICE STATION, THRISSUR ``` ## `PETITIONER/ACCUSED:` ``` LIJO.S.V, AGED 39 YEARS S/O. VARKEY, SHANKURIKKAL HOUSE, KARIYANOOR VILLAGE, KUNNAMKULAM TALUK, ERUMAPETTY P.O, THRISSUR 680 584 ``` ``` BY ADVS.C.DHEERAJ RAJAN ANAND KALYANAKRISHNAN ``` ## `RESPONDENT/STATE:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 (CRIME 678/2021 OF NEDUPUZHA POLICE STATION, THRISSUR DISTRICT) ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.01.2024,THE COURT ON 31.01.2024, DELIVERED THE FOLLOWING: ``` B.A.No.9232/2021 -:2:- Dated this the 31[st] 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 seventh accused in Crime No.678/2021 of Nedupuzha Police Station, Thrissur, registered against the accused for allegedly committing the offence under Sections 406 & 420 read with Section 34 of the Indian Penal Code, 1860 (‘IPC’, for short), and Section 3 read with Section 21 of the Banning of Unregulated Deposit Schemes Act, 2019. The investigation in the cases have now been transferred to the Crime Branch, Thrissur city. 3. The essence of the prosecution case in the four crimes, is that: The accused Nos.1 to 8 had jointly B.A.No.9232/2021 ## -:3:- collected Rs.28,53,520(Rupees twenty lakh fifty three thousand five hundred and twenty only) as deposit from the de-facto complainants and other depositors(‘depositors’, for the sake of brevity), making them believe that they are the Directors and Associates of ‘Toll Deal Ventures’. The accused promised the depositors that the amount would be invested in an Online application named ‘My Club Traders’ and the deposits would be returned with huge profits. However, the accused failed to return the principal or profit as assured by them. Thus, the accused have committed the above offences. 4. Heard; Sri. Dheeraj Rajan C., the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally B.A.No.9232/2021 -:4:- innocent of the accusations levelled against him. The petitioner is only a Driver of the first accused. The petitioner used to transport cows from Pollachi to Mysore to the farm of the first accused. The petitioner does not have any knowledge about the company named ‘Toll Deal Ventures’ or ‘My Club Traders’. The petitioner has been falsely implicated in the crime. The petitioner has no direct complicity in the crime. The entire amount was received by the persons who were in-charge and responsible for the day-today affairs and the management of the company. The petitioner has not directly or indirectly promoted, operated, advertised or accepted any deposit from any person. The ingredients to attract the offence under Sections 406 & 420 of the IPC is lacking as against the petitioner. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and also co-operate with the investigation. At any rate, B.A.No.9232/2021 -:5:- the custodial interrogation of the petitioner is not necessary. Hence, the applications may be allowed. 6. The learned Public Prosecutor vehemently opposed the applications. She contended that the petitioner was in-charge and directly responsible for the day-today administration of the company. There are 28 cases registered against the accused, on the basis of the complaints lodged by the depositors. The investigation agency has received incriminating materials against the petitioner. Therefore, the petitioner’s arrest is imperative, his custodial interrogation is necessary and recovery is to be effected. The investigation has revealed that Rs.4,56,28,197(Rupees four crore fifty six lakh twenty eight thousand one hundred and ninety seven only) has been siphoned off by the accused in the above crimes. The accused have all made unlawful gain by cheating the depositors. If the petitioner is granted an order of B.A.No.9232/2021 -:6:- pre-arrest bail, it would hamper with the full and proper investigation of the case. The petitioner has committed a grave economic offence. 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: **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; B.A.No.9232/2021 -:7:- (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 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 B.A.No.9232/2021 -:8:- 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. ## 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. B.A.No.9232/2021 -:9:- ## 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. 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. 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 B.A.No.9232/2021 -:10:- in progress, that the custodial interrogation of the petitioner is necessary, that there are 28 cases of similar nature committed by the accused which are also being investigated by the present investigation team and prima-facie the accused have cheated the depositors to the tune of Rs.4,56,28,197/- `,` I am of the definite view that the petitioner has not made out any exceptional circumstances entitling him 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 orders of pre-arrest bail. Consequently, the bail applications are dismissed. 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 B.A.No.9232/2021 -:11:- shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as 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** DST/30.01.24 //True copy// P.A. To Judge