NOUSHAD P and ZAKERIYA v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 BAIL APPL.NO.2539 OF 2024 ``` ``` CRIME NO.67/2024 OF Atholy Police Station, Kozhikode ``` ``` ------------- ``` ## **`PETITIONERS :-`** ``` 1NOUSHAD P, AGED 41 YEARS S/O ABOOBAKKAR, P.A. HOUSE, P.O ANNASSERY THALAKULATHOOR VILLAGE, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673 582 ``` ``` 2ZAKERIYA, AGED 65 YEARS S/O MOOSA KOYA, BASIMA MAHAL, EDAVANAKUZHI, P.O ANNASSERY, THALAKULATHOOR VILLAGE, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673 582 ``` ``` BY ADVS. S.K.ADHITHYAN SHAHINA NOUSHAD REUBEN CHARLY ``` ## **`RESPONDENT :-`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ## **`OTHER PRESENT:`** ``` Sri C S Hrithwik, Sr.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.2539 OF 2024 ``` ``` -: 2 :- ``` ## **Dated this the 4[th] day of April, 2024** ## **ORDER** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 _,_ for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 2 in Crime No.67/2024 of Atholy Police Station, Kozhikode, registered against them for allegedly committing the offences punishable under Sections 406 and 420 r/w Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that; during the period from 29.7.2020 to 2.3.2022, the accused received a total amount of Rs.20/- lakh from the de facto complainant on the false assurance that they would secure an employment for the de facto complainant's son in a college. However, they failed to secure the employment and refused to return the money. Thus, the accused have committed the above offences. ``` BAIL APPL.NO.2539 OF 2024 ``` ``` -: 3 :- ``` 4. Heard; Sri.S.K.Adhithyan, the learned counsel for the petitioners, Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The entire amount was paid by the de facto complainant to one Radhakrishnan Nair, who had assured an employment for the son of the de facto complainant in the Anthropology Department in a college. Making use of a cheque issued by the 1[st] accused, the de facto complainant has already filed a complaint under Section 138 of the N.I.Act against him. The 2[nd] accused has no role in the entire incident. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that there are incriminating materials to establish the petitioners' involvement in the ``` BAIL APPL.NO.2539 OF 2024 ``` ``` -: 4 :- ``` crime. The entire financial transactions were made through the bank accounts of the accused. The petitioners' custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would torpedo the investigation. Hence, the application may be dismissed. 7. The petitioners have filed a similar application before the Court of Session, Kozhikode, which was dismissed by order dated 20.3.2024 in Crl.M.C. No.445/2024. 8. The prosecution allegation is that; the accused had promised the de facto complainant that they would secure an employment to his son in a college and accordingly, received Rs.20/- lakh. Now, they contend that the entire amount was received by one Radhakrishnan Nair and not by them. The prosecution alleges that the entire amount was received by the petitioners through their bank accounts and there are materials to substantiate their accusation. ``` BAIL APPL.NO.2539 OF 2024 ``` ``` -: 5 :- ``` ## 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 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; (iii) The possibility of the applicant to flee from justice; ``` BAIL APPL.NO.2539 OF 2024 ``` ``` -: 6 :- ``` (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; (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. ``` BAIL APPL.NO.2539 OF 2024 ``` ``` -: 7 :- ``` **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 conferpower and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 10. 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 falsely enroped in the crime and his liberty is being misused. 11. In **Srikant Upadhyay** v. **State of Bihar** [2024 KHC OnLine 6137], the Hon’ble Supreme Court, after ``` BAIL APPL.NO.2539 OF 2024 ``` ``` -: 8 :- ``` ## referring to the earlier precedents on the point, has succinctly laid down the law in the following lines: **8.** It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in **HDFC Bank Ltd.** v. **J.J.Mannan & Anr.,** 2010 (1) SCC 679). **24.** We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim ``` BAIL APPL.NO.2539 OF 2024 ``` ``` -: 9 :- ``` protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx xxx xxx xxx” 12. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, especially on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioners, that the entire amount was transferred to the bank accounts of the accused, that the petitioners' custodial interrogation is necessary and recovery is to be effected, I am of the definite view that the petitioners have not made any exceptional ground 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 application is dismissed. **Sd/-** Jvt/5.4.24 ``` BAIL APPL.NO.2539 OF 2024 ``` ``` -: 10 :- ``` ## **`APPENDIX OF BAIL APPL. 2539/2024`** ``` PETITIONER ANNEXURES :- ``` ``` Annexure A2ORDER DATED 20-03-2024 IN CRMC 445/2024 ON DISTRICT COURT & SESSIONS COURT,KOZHIKODE Annexure A1TRUE COPY OF THE FIR IN CRIME NO 67/2024 OF ATHOLI POLICE STATION, KOZHIKODE DISTRICT ```