Noorjahan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 98 OF 2024 ``` ``` CRIME NO.418/2023 OF CHERUTHURUTHY POLICE STATION, THRISSUR AGAINST THE ORDER/JUDGMENT CRMC 1208/2023 OF ADDITIONAL ``` ``` DISTRICT COURT & SESSIONS COURT -IV, THRISSUR / III ADDITIONAL ``` ## **`MACT, THRISSUR`** ## **`PETITIONER/3RD ACCUSED:`** ``` NOORJAHAN, AGED 38 YEARS DAUGHTER OF AYSHA, PARAMBIL PEEDIKAYIL, PYNKULAM, CHERUTHURUTHY, THRISSUR DISTRICT, PIN - 679531 ``` ``` BY ADVS. K.JAGADEESH V.RENJU ``` ## **`RESPONDENT/STATE:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER, CHERUTHURUTHY POLICE STATION, CHERUTHURUTHY, THRISSUR, PIN - 679531`** - **`3 KANJANI SYNDICATE, THALAPPILLY CHERUTHURUTHY , THRISSUR DISTRICT,CHERUTHURUTHY P.O.PIN-679531, REPRESENTED BY ITS MANAGING PARTNER THOMAS, S/O VARKEY, AGED 63 YEARS, ARANATTUKARA ELTHURUTHU THRISSUR DISTRICT - ( SOUGHT TO BE IMPLEADED )`** ``` BY ADVS. FRANKLIN ARACKAL I.J.AUGUSTINE ``` ## **`OTHER PRESENT:`** ``` SRI. C.S HRITHWIK – SR. PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 98 OF 2024 ``` **==> picture [37 x 9] intentionally omitted <==** ## **O R D E R** Dated this the 7[th] day of February, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the 3[rd] accused in Crime No.418 of 2023 of the Cheruthuruthy Police Station, Thrissur registered against the accused (ten in number) for allegedly committing the offences punishable under Sections 406, 408 and 420 read with Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that; during the period from 20.09.2017 to 31.08.2022, the accused Nos. 1 and 2 were working as the manger and clerk of a financial institution name Kanjani Syndicate which belongs to the defacto complainant/the intervenor. In furtherance of the common intention, the accused Nos. 3 to 10 pledged spurious gold and availed a loan of Rs.29,06,060/- from the defacto complainant. Thus, the accused has committed the above offences. ``` BAIL APPL. NO. 98 OF 2024 ``` **==> picture [37 x 9] intentionally omitted <==** 4. Heard; Sri. Jagadeesh K, the learned counsel appearing for the petitioner, Sri. C.S. Hrithwik., the learned Senior Public Prosecutor appearing for the respondent and Sri. Franklin Arackal, the learned counsel appearing for the defacto complainant/intervenor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. The petitioner is falsely implicated in the crime, in fact, the petitioner has been cheated by the accused Nos. 1 and 2, the manager and clerk of the defacto complainant. The petitioner is a lady suffering from 45% physical disability. She is the sole breadwinner of the family and her mother is suffering from cancer. The petitioner is willing to abide by any stringent conditions that may be imposed by this Court. By order in B.A. No. 8016 of 2023, this Court has granted the 1[st] accused an order of pre-arrest bail. The petitioner is actually a victim, and she is entitled to the benefit of a similar order. Hence, the application may be allowed. 6. The learned Public Prosecutor strenuously ``` BAIL APPL. NO. 98 OF 2024 ``` **==> picture [37 x 9] intentionally omitted <==** opposed the application. He contended that the petitioner had pledged spurious gold bars with the defacto complainant, in collusion with the accused Nos.1 and 2 and had received an amount of Rs.19,38,800/- as per the loan account No.7559/2022. Subsequently, the petitioner transferred an amount of Rs. 14,50,000/- to the bank account of the 1[st] accused. Thereafter, the petitioner issued four cheques for an amount of Rs.3,62,500/- each in favour of the defacto complainant admitting her guilt and promising to repay the amount that was fraudulently availed by her. However, those cheques also got dishonoured. There is sufficient material to establish the complicity of the petitioner. Custodial interrogation of the petitioner is necessary, and recovery is to be effected. The petitioner has committed a grave economic offence. If the petitioner is granted an order of pre-arrest bail it would hamper with the investigation. Hence, the application may be dismissed. 7. The intervenor has also filed an objection with the bail application, inter alia, contending that the ``` BAIL APPL. NO. 98 OF 2024 ``` **==> picture [37 x 9] intentionally omitted <==** petitioner received Rs. 19,38,800/- as per Annexure R3(a) receipt, and she has also executed Annexures R3(b) to R3(e) receipts. All these materials show that the petitioner has cheated the de facto complainant. Hence, the application may be dismissed. 8. The prosecution allegation is that the petitioner, in connivance with accused Nos. 1 and 2 had pledged spurious gold with the de facto complainant and received a loan for Rs.19,38,800/-. Thereafter, the petitioner, admitting to her guilt had issued four cheques to the defacto complainant for the said amount, which were also dishonoured. 9. 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 ``` BAIL APPL. NO. 98 OF 2024 ``` **==> picture [37 x 9] intentionally omitted <==** 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; ``` BAIL APPL. NO. 98 OF 2024 ``` **==> picture [37 x 9] intentionally omitted <==** (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, ``` BAIL APPL. NO. 98 OF 2024 ``` **==> picture [37 x 9] intentionally omitted <==** 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. ## 10. In **Jai Prakash Singh v. State of Bihar and** ``` BAIL APPL. NO. 98 OF 2024 ``` **==> picture [37 x 9] intentionally omitted <==** **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. 11. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submission made across the Bar, and taking into account the nature, gravity, and seriousness of the offence alleged against the petitioner, and particularly after going through the Annexures R3(a) to R3(e) documents produced by the defacto complainant, 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 ``` BAIL APPL. NO. 98 OF 2024 ``` **==> picture [44 x 9] intentionally omitted <==** application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, she 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 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** LU ``` BAIL APPL. NO. 98 OF 2024 ``` ``` ..11.. ``` ## **`APPENDIX OF BAIL APPL. 98/2024`** ## **`PETITIONER ANNEXURES :`** ``` ANNEXURE A1TRUE COPY OF THE FIR NO.418/2023 REGISTERED BY CHERUTHURUTHY POLICE STATION DATED 1-8-2023 ``` ``` ANNEXURE A2TRUE COPY OF THE UNIQUE DISABILITY ID ISSUED BY DMO OFFICE ,THRISSUR ON 6-3- 2020 ``` ``` ANNEXURE A3A TRUE PHOTOSTAT COPY OF THE ORDER IN CRL.M.C.NO.1208 OF 2023 OF THE SESSIONS JUDGE, THRISSUR DATED 11-9- 2023 ``` - **`RESPONDENT ANNEXURES : ANNEXURE R3(A) TRUE COPY OF THE RELEVANT 1ST PAGE OF THE APPLICATION FORM DATED 24/6/2022`** - **`ANNEXURE R3(B) TRUE COPY OF THE RECEIPT DATED 24/6/2022 AGAINST LOAN NO.7559/2022 EVIDENCING RELEASE OF AN AMOUNT OF RS.5,00,000/- TO THE PETITIONER`** - **`ANNEXURE R3(C) TRUE COPY OF THE RECEIPT DATED 24/6/2022 AGAINST LOAN NO.7560/2022 EVIDENCING RELEASE OF AN AMOUNT OF RS.5,00,000/- TO THE PETITIONER`** - **`ANNEXURE R3(D) TRUE COPY OF THE RECEIPT DATED 24/6/2022 AGAINST LOAN NO.7561/2022 EVIDENCING RELEASE OF AN AMOUNT OF RS.5,00,000/- TO THE PETITIONER`** - **`ANNEXURE R3(E) TRUE COPY OF THE SAID RECEIPT DATED 24/6/2022 AGAINST LOAN NO.7562/2022 SHOWING RELEASE OF AN AMOUNT OF RS.4,38,800/- TO THE PETITIONER`** ## **`// True Copy // PA To Judge`**