Muhammed Farhan v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 ``` ## `BAIL APPL. NO. 10 OF 2024` ``` CRIME NO.990/2023 OF HOSDURG POLICE STATION, KASARGOD ``` ## `PETITIONERS:` ``` 1MUHAMMED FARHAN, AGED 28 YEARS S/O. ABDUL RAHIMAN, R/AT BAITHUL FALAH, MADIYAN ROAD, P.O.MANIKOTH, HOSDURG TALUK, KASARAGOD, PIN – 671531 2ABDUL RAHIMAN (DELETED) AGED 50 YEARS S/O.MUHAMMADKUNHI, R/AT BAITHUL FALAH, MADIYAN ROAD, P.O.MANIKOTH, HOSDURG TALUK, KASARAGOD (DELETED AS PER ORDER DTD 29/1/24 IN CRL MA 1/24), PIN – 671531 BY ADVS.BEJOY JOSEPH P.J. M.RAMESH CHANDER (SR.) BALU TOM BONNY BENNY GOVIND G. NAIR ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.10/2024 -:2:- Dated this the 29[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 fourth accused in Crime No.990/2023 of Hosdurg Police Station, Kasaragod, registered against the accused (seven in number) for allegedly committing the offences punishable under Sections 403, 405, 406, 409, 418, 420 & 477 read with Section 34 of the Indian Penal Code, 1860. 3. The essence of the prosecution case is that: the first accused, while she was working as the Manager of the Kottacherry Service Co-operative Bank, Manikoth branch, pledged gold ornaments with the Bank in the name of the other accused and she received substantial amounts from the bank and, thereby, defrauded the bank. Thus, the accused have B.A.No.10/2024 -:3:- committed the above offences. 4. Heard; Sri. Bejoy Joseph P.J., the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of Annexure-A1 First Information Report [FIR] and First Information Statement given by the de-facto complainant would substantiate that, it is only the first accused who has committed the above offences. The petitioner was only a customer of the bank. He is in no way involved in the crime. At any rate, the petitioner’s custodial interrogation is not necessary and no recovery is to be effected. The petitioner is willing to abide by any stringent condition that may be B.A.No.10/2024 -:4:- imposed by this Court and also co-operate with the Investigating Officer. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He contended that the first accused in furtherance of her common intention with the other accused have defrauded the bank by committing misappropriation to the tune of nearly Rs.60,00,000/-. The investigation of the case is in progress. The petitioner's custodial interrogation is and is to be effected. The necessary recovery preliminary investigation has revealed that Rs.3,90,870/- was transferred by the first accused from the bank to the savings bank account of the petitioner in the very same bank. Out of the said amount, Rs.2,00,000/- has already been withdrawn by the petitioner. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. B.A.No.10/2024 -:5:- Hence, the application may be dismissed. 7. The prosecution allegation is that the accused in furtherance of their common intention had falsified the accounts of the bank and the first accused misappropriated Rs.58,41,000/- by allegedly pledging the gold ornaments in the names of her beneficiaries and, thereafter, siphoned off the above said amount. The preliminary investigation substantiates that the petitioner has also received a portion of the amount that was allegedly misappropriated by the first accused. ## 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 B.A.No.10/2024 -:6:- 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 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; B.A.No.10/2024 -:7:- (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 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 B.A.No.10/2024 -:8:- 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 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 prearrest 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.” 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, especially considering the fact that the preliminary investigation reveals that B.A.No.10/2024 -:9:- certain amounts have been transferred by the first accused to the bank account of the petitioner and that he has withdrawn the same, I am prima-facie satisfied that the offences alleged against the petitioner have been made out. On comprehending the seriousness, gravity, and nature of the economic offences alleged against the petitioner, that the petitioner’s custodial interrogation is necessary and that the recovery is to be effected, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Section 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. 12. 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 B.A.No.10/2024 -:10:- 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. 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/29.02.24 //True copy// P.A. To Judge