MANI v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 BAIL APPL. NO. 1113 OF 2024 CRIME NO.1805/2023 OF KODUNGALLUR POLICE STATION, THRISSUR AGAINST THE ORDER/JUDGMENT CRMC 1758/2023 OF DISTRICT COURT & ``` ## **`SESSIONS COURT,THRISSUR`** ## **`PETITIONER/2ND ACCUSED:`** ``` MANI AGED 66 YEARS S/O SANKARAN NAIR, GOLDEN APARTMENTS, KUNNAMKULAM, PARAYAMPADAM DESOM, THRISSUR DISTRICT., PIN - 680503 ``` ``` BY ADVS. T.P.SANTHOSH KUMAR C.H.ABDUL RASAC ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SR PUBLIC PROSECUTOR SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. NO.1113 of 2024** ``` 2 ``` ## **Dated this the 19[th] day of February, 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 second accused in Crime No.1805/2023 of the Kodungallur Police Station, Thrissur, registered against the accused (two in number) for allegedly committing the offence punishable under Section 420 r/w Section 34 of the Indian Penal Code 3. The gist of the prosecution case is that; the accused in furtherance of their common intention, had offered the de facto complainant a work visa in the United Kingdom. Consequently, the accused received an amount of Rs.6.5 lakh from the de facto complainant. However, the accused did not offer the employment or return the **B.A. NO.1113 of 2024** ``` 3 ``` money. Thus, the accused have committed the above offence. 3. Heard Sri. Santhosh Kumar.T.P., learned counsel appearing for the petitioner and Smt.Seetha S, the learned Senior Public Prosecutor appearing for the respondent. 4. Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. There is no specific overt act alleged against the petitioner. The petitioner is a 66 year old man and has no criminal antecedents. The petitioner has not received any money. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and co-operate with the investigation. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that the de facto complainant had transferred an amount of Rs.2,00,000/- ``` 4 ``` ## **B.A. NO.1113 of 2024** to the petitioner. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner has granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 6. 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 **B.A. NO.1113 of 2024** ``` 5 ``` 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 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; **B.A. NO.1113 of 2024** ``` 6 ``` (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. ## 7. 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 ``` 7 ``` ## **B.A. NO.1113 of 2024** satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 9. On an anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, especially taking into consideration the prosecution allegation that an amount of Rs.2,00,000/was given to the petitioner, that the investigation is at its nascent stage, that the petitioner’s custodial interrogation is necessary, and that the recovery is to be effected, I am of the definite view that the petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, ``` 8 ``` ## **B.A. NO.1113 of 2024** 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 on the date of surrender itself and pass orders in accordance with law. 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** ``` rmm/19/2/2024 ```