LOVID ANTONY v. STATE OF KERALA & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945** ## **BAIL APPL. NO. 11416 OF 2023** **CRIME NO.2528/2023 OF THOPPUMPADY POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **LOVID ANTONY AGED 46 YEARS S/O ANTONY R/O AKATHUPARAMBU,11/1730, WEST ODATHA, NAZARETH VELI, FORTKOCHI P.O, KOCHI, PIN - 682002** ## **BY ADV A.B.MOHANAKUMAR** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 THE COMMISSIONER OF POLICE KOCHI CITY POLICE COMMISSIONER'S OFFICE KOCHI, PIN - 682011** - **3 THE SUB INSPECTOR OF POLICE THOPPUMPADY POLICE STATION, KOCHI, PIN - 682005** **4 XAVIER V P S/O PRAKASAN VELUTHEDATHU, NAZRATH, RAMESWARAM, ERNAKULAM CITY KOCHI, PIN - 682001** ## **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.11416 OF 2023** **2** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the first accused in crime No.2528/2023 of the Thoppumpady Police Station, Ernakulam, registered against him for allegedly committing the offences punishable under Sections 406, 417 and 420 of the Indian Penal Code. 3. The gist of the prosecution case is that: the accused had collected money from the defacto-complainant on assuring him to secure an employment in Malta near Italy. However, the accused did not secure the employment or return the money. Thus, the accused has committed the above offences. 4. Heard Sri.A.B.Mohan Kumar, learned counsel appearing for the petitioner and Smt. Neema T.V., the **BAIL APPL.NO.11416 OF 2023** **3** learned Public Prosecutor appearing for the respondents 1 to 3. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsly implicated in the crime. The dispute between the parties is purely civil in nature. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and also cooperate with the investigation. At any rate, the petitioner's custodial interrogation is not necessary. Hence, the application may be allowed. 6. The application is vehemently opposed by the learned Public Prosecutor. She contended that the petitioner along with the second accused have cheated several persons. The second accused is involved in five other cases of similar nature. The petitioner's custodial interrogation is necessary for a proper investigation in the case and the recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper the investigation. Hence, the **BAIL APPL.NO.11416 OF 2023** **4** 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 Cr.PC 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 **BAIL APPL.NO.11416 OF 2023** **5** 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 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 **BAIL APPL.NO.11416 OF 2023** **6** 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 selfimposed limitations. ## 8. Likewise, in **Gurbaksh Singh Sibbia v. State of Punjab, [(1980) 2 SCC 565]** the Hon’ble Supreme Court has held as follows: 21. The High Court says in its fourth proposition that in **BAIL APPL.NO.11416 OF 2023** **7** addition to the limitations mentioned in Section 437, the petitioner must make out a “special case” for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not “unguided or uncanalised”, the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special case” for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a “special case”. We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. **BAIL APPL.NO.11416 OF 2023** **8** 9. After bestowing my anxious consideration to the rival submissions made across the bar, particularly taking note of the gravity, nature and seriousness of the accusations levelled against the petitioner in the case and the recovery is to be effected, I am of the definite view that this is not a fit case to exercise the extraordinary jurisdiction of this Court under Section 438 of the Code of Criminal Procedure. Therefore, I am not inclined to grant the petitioner an order of pre-arrest bail. 10. In the result, the application is dismissed. Nonetheless, in case the petitioner surrenders before the jurisdictional police within a period of 10 days from he shall be interrogated and, thereafter, he shall 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 possible. If the petitioner fails to **BAIL APPL.NO.11416 OF 2023** **9** surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner, in accordance with law. Sd/- **C.S.DIAS JUDGE** **shg**