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``` 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. 1098 OF 2024 ``` ``` CRIME NO.102/2024 OF Ernakulam North Police Station, Ernakulam - PETITIONER(S)/ACCUSED 24: ``` ``` 1SANJU T AGED 37 YEARS SANJU T, AGED 37 YEARS, S/O GOPI, THONDIYIL, MALAPPURAM, PIN – 670673 2JOSEPH MANUEL FERNANDES AGED 32 YEARS JOSEPH MANUEL FERNANDES, AGED 32 YEARS, S/O AMBROSE FERNANDES, MALIYEKKEL HOUSE, VADUTHALA, ERNAKULAM, PIN - 682023 3PETER JOSE JOBIN AGED 40 YEARS PETER JOSE JOBIN, AGED 40 YEARS, S/O JOSEPH MANNALY HOUSE, KUMBALANGI PO, KOCHI, PIN – 682007 BY ADVS. ELDHO MATHEW RASMI NAIR T. ``` ## _`RESPONDENT(S):`_ ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## _`BY ADV:`_ ``` SRI C S HRITHWIK, SR PP ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 1098 OF 2024 ``` ``` -2- ``` ## _`ORDER`_ 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 petitioners are the accused 2 to 4 in Crime No.102/2024 of the Ernakulam North Police Station, Ernakulam, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 406, 420 read with Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: the first accused along with accused 2 to 4 made the de facto complainant believe that they could secure a loan for Rs.4/- Crore under the Central Government Agricultural Scheme, and they convinced the de facto complainant to transfer an amount of Rs.20,00,000/- as an insurance amount to the bank account maintained by the first accused. However, the accused did not get the loan ``` BAIL APPL. NO. 1098 OF 2024 ``` **==> picture [37 x 9] intentionally omitted <==** sanctioned and did not repay the amount. Thus, the accused have committed the above offences. 4. Heard; Sri. Eldho Mathew, the learned counsel appearing for the petitioners and Sri. C.S.Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have no involvement in the crime. The entire transactions was between the de facto complainant and the first accused as per Annexure A2 agreement executed between them. The alleged consideration was also transferred to the bank account of the first accused. The accused 2 and 3 are only direct selling agents and accused 4 is only a banker. Therefore, their custodial interrogation is not necessary and no recovery is to be effected for them. Hence, the application may be ``` BAIL APPL. NO. 1098 OF 2024 ``` allowed. 6. The learned Public Prosecutor seriously opposed the application. He contended that, the petitioners are involved in a huge racket, whereby they promise to secure loans under the Central Government Schemes for innocent persons. However, after receiving advance consideration, they fail to secure the loan. The petitioners' custodial interrogation is necessary, and recovery is to be effected. If an order of pre-arrest bail is granted, it would hamper with the investigation. Hence, the application may be dismissed. 7. 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 ``` BAIL APPL. NO. 1098 OF 2024 ``` **==> picture [37 x 9] intentionally omitted <==** 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 ``` BAIL APPL. NO. 1098 OF 2024 ``` ``` -6- ``` 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 ``` BAIL APPL. NO. 1098 OF 2024 ``` ``` -7- ``` 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, ``` BAIL APPL. NO. 1098 OF 2024 ``` ``` -8- ``` 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. 8. 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 a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima ``` BAIL APPL. NO. 1098 OF 2024 ``` **==> picture [37 x 9] intentionally omitted <==** facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 9. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar and on comprehending the seriousness, gravity, and nature of the economic offence alleged against the petitioners, that the petitioners’ custodial interrogation is necessary, that the recovery is to be effected, and that the investigation is in the preliminary stage, I am of the definite view that the petitioners have not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code, especially after being allegedly involved in an economic offence. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 10. Nonetheless, I direct that, if the petitioners ``` BAIL APPL. NO. 1098 OF 2024 ``` **==> picture [44 x 9] intentionally omitted <==** surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move 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 petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. Sd/- ``` C.S.DIAS JUDGE ``` ``` vv ``` ``` BAIL APPL. NO. 1098 OF 2024 ``` ``` -11- ``` ## _`APPENDIX OF BAIL APPL. 1098/2024`_ ``` PETITIONER ANNEXURES ``` ``` Annexure A1A TRUE COPY OF THE POLICY ISSUED IN FAVOUR OF THE PETITIONER'S PART BY THE BHARATI AXA LIFE GUARANTEED WEALTH PRO DATED31.03.2022 Annexure A2A TRUE COPY OF THE AGREEMENT DATED 31.05.2022 ```