NOUFAL v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945** **BAIL APPL. NO. 966 OF 2024** **CRIME NO.830/2024 OF ERUMAPETTY POLICE STATION, THRISSUR** **AGAINST THE ORDER/JUDGMENT CRMC 45/2024 OF ASSISTANT SESSIONS COURT/I** **ADDITIONAL SUB COURT, THRISSUR** ## **PETITIONER/ACCUSED:** **NOUFAL AGED 38 YEARS S/O SAIDU, ORUVIN PURATH, CHALISSERY, PALAKKAD., PIN - 679536** **BY ADVS. VISHNU BHUVANENDRAN B.ANUSREE MIRAL K.JOY ABHILASH C.V. VARUN JACOB** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031** **SMT.NIMA JACOB, P.P.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.966 OF 2024** **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 accused in crime No.830/2024 of the Erumapetty Police Station, Thrissur registered against the accused for allegedly committing the offences punishable under Sections 419 and 420 r/w. S.34 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 27.12.2023 at around 2.00 p.m, while the defacto complainant and his friends were proceeding to Nedumbassery Airport in their car, their vehicle was intercepted by two identifiable persons in their car at Pathramangalam. The two persons introduced themselves as police officials and illegally took away the passport and air ticket of the defacto complainant. Thus, the accused have **BAIL APPL.NO.966 OF 2024** **3** committed the above offences. 4. Heard; Sri.Vishnu Bhuvanedran, the learned counsel appearing for the petitioner and Smt.Nima Jacob, the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The very fact that the petitioner had sent Annexure II e-mail to the Indian Embassy, Doha, Qatar, complaining that the defacto complainant had collected an amount of 22000 Qatar Riyals promising to give him partnership in the defacto complainant's business, but he refused to do the same and that the defacto complainant could not identify the petitioner proves the falsity in the complaint. There is absolutely no material to substantiate that the petitioner is involved in the above crime. At any rate, the petitioner's custodial interrogation is not necessary and no recovery is to be effected. The petitioner is willing to cooperate with the investigation and abide by any stringent condition that may **BAIL APPL.NO.966 OF 2024** **4** be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor vehemently opposed the application. She contended that the petitioner with a dishonest intention intercepted the vehicle in which the defacto complainant was travelling and impersonated himself as police official and took away the passport and air ticket of the defacto complainant. In the investigation the police have viewed the C.C.T.V. Visuals and identified the vehicle in which the petitioner was travelling. The vehicle owner has stated that it was the petitioner who took the vehicle on hire for Rs.700/- and returned the vehicle on the very same date. The investigation in the case is at a nascent stage. The petitioner's custodial interrogation is necessary and recoveries have to be effected. The petitioner is a person with criminal antecedents since he is involved in crime Nos.210/2021, 231/2021 and 196/2022 of the very same police station for committing similar offences. If the petitioner is granted an order of pre-arrest bail, there is **BAIL APPL.NO.966 OF 2024** **5** every likelihood of him tampering with the evidence and influencing the witnesses. Hence, the application may be dismissed. 7. The prosecution allegation is that the petitioner and another accused impersonated themselves as police officials, intercepted the vehicle in which the defacto complainant was travelling and took away the passport and air ticket of the defacto complainant. The petitioner had filed a similar application before the Court of Session, which was dismissed by Annexure V order on the finding that the material witnesses have to be questioned, that the investigation is only at preliminary stage and custodial interrogation of the petitioner is necessary. 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 **BAIL APPL.NO.966 OF 2024** **6** 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; (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 **BAIL APPL.NO.966 OF 2024** **7** 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 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. Likewise, in **Jai Prakash Singh v. State of Bihar** **& Anr.** [(2012) 4 SCC 379] the Hon'ble Supreme Court has held that an order of pre-arrest bail shall be granted only in exceptional cases where the court is prima facie of the view **BAIL APPL.NO.966 OF 2024** **8** that the applicant was falsely enroped in crime and that he is not likely to misuse his liberty. 10. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar and on prima facie being convinced of the nature, gravity and seriousness of the offences alleged against the petitioner, that in the investigation has reveled that the petitioner is involved in the case, that the petitioner's custodial interrogation is necessary, that the recovery is to be effected and that the petitioner is a person with criminal antecedents because he is involved in three other crimes of the very same police station for committing similar offences, I am of the definite view that the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court under Section 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 application is dismissed. 11. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days **9** **BAIL APPL.NO.966 OF 2024** 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 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** ## **shg**