Nusrath V.P v. State of Kerala

1 Bail Application Nos. 5698, 6867 and 6868 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 BAIL APPL. NO. 5698 OF 2023 ``` ``` CRIME NO.462/2023 OF Pandikad Police Station, Malappuram PETITIONER/S: ``` ``` NUSRATH V.P AGED 37 YEARS W/O SURESH RESIDING AT VELUTHAPARAMBATHU HOUSE HARISREE NAGAR, CHOVVUR PO TRISSUR DISTRICT, PIN - 680027 BY ADVS. Neeraj R.HARIKRISHNAN (KAMBISSERIL)(K/993/2012) ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER PANDIKKAD POLICE STATION, MALAPPURAM DISTRICT, PIN - 676521 ``` ## **`OTHER PRESENT:`** ``` SMT.NIMA JACOB, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.01.2024 BA NOS.6867 AND 6868 OF 2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application Nos. 5698, 6867 and 6868 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 BAIL APPL. NO. 6867 OF 2023 ``` ``` CRIME NO.769/2023 OF Kottakkal Police Station, Malappuram PETITIONER/S: ``` ``` NUSRATH V.P AGED 37 YEARS W/O SURESH,RESIDING AT VELUTHAPARAMBATHU HOUSE,HARISREE NAGAR, CHOVVUR PO TRISSUR DIST, PIN - 680027 BY ADVS. Neeraj R.HARIKRISHNAN (KAMBISSERIL)(K/993/2012) ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER, KOTTAKKAL POLICE STATION,MALAPPURAM DISTRICT, PIN – 676503 SMT.NEEMA.T.V, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.01.2024 ALONG WITH BA NOS.5698 AND 6868 OF 2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Bail Application Nos. 5698, 6867 and 6868 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 BAIL APPL. NO. 6868 OF 2023 ``` ``` CRIME NO.821/2023 OF Kottakkal Police Station, Malappuram PETITIONER/S: ``` ``` NUSRATH V.P, AGED 37 YEARS W/O SURESH,RESIDING AT VELUTHAPARAMBATHU HOUSE,HARISREE NAGAR, CHOVVUR PO TRISSUR DIST, PIN - 687027 BY ADVS. Neeraj R.HARIKRISHNAN (KAMBISSERIL)(K/993/2012) ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER, KOTTAKKAL POLICE STATION, MALAPPURAM DISTRICT, PIN – 676503 SMT.NIMA JACOB, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.01.2024 BA NOS.5698 AND 6867 OF 2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 Bail Application Nos. 5698, 6867 and 6868 of 2023 ## **C.S.DIAS,J** ## **======================** # **Bail Application Nos. 5698, 6867 and 6868 of 2023** ## **-----------------------------------** **Dated this the 15[th] day of January, 2024** ## **COMMON O R D E R** The applications are filed under Section 438 of the Code of Criminal Procedure, 1973, for orders of prearrest bail. As the petitioner in these bail applications is the same person, these bail applications were consolidated and jointly heard and are being disposed of by this common order. 2. BA No.6867/2023 is filed in crime No.769/2023 of Kottakkal Police Station, BA 5 Bail Application Nos. 5698, 6867 and 6868 of 2023 No.5698/2023 is filed in crime No.462/2023 of the Pandikad Police station and BA No.6868/2023 is filed in crime No.821/2023 of the Kottakkal Police Station. All the cases have been registered against the petitioner for allegedly committing the offence under Sec.420 of the Indian Penal Code. 3. The gist of the prosecution case in BA No.6867/2023 is that the petitioner appropriated an amount of Rs.3,00,000/- from the defacto complainant on 5.2.2020 allegedly promising that she would arrange a job for the son of the defacto complainant in the Indian Railway. 6 Bail Application Nos. 5698, 6867 and 6868 of 2023 4. In BA No.5698/2023, the prosecution case is that the petitioner had received an amount of Rs.7,20,000/- from the defacto complainant during the period from 4.5.2017 to 31.8.2017 allegedly assuring that she would secure a seat for the MBBS course in the Jubilee Medical Mission Hospital, Thrissur, for the daughter of the defacto complainant. 5. Likewise in BA No.6868/2023, the prosecution case is that the petitioner appropriated 15.5 sovereigns of gold ornaments from the defacto complainant making them believe that she would close a loan account of the defacto complainant with the 7 Bail Application Nos. 5698, 6867 and 6868 of 2023 Malappuram District Co-operative Bank. Thus the petitioner has committed the offence under Sec.420 of the Indian Penal Code. 6. Heard; Sri.Neeraj Narayanan, the learned counsel appearing for the petitioner and Smt.Nima Jacob, and Smt.Neema.T.V, the learned Public Prosecutors appearing for the respondents in all these cases. 7. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. She is a law abiding citizen. The offence under Sec.420 will not lie in the three cases. The very fact that there is a huge delay in 8 Bail Application Nos. 5698, 6867 and 6868 of 2023 preferring the complaint itself shows the falsity of the crime. The petitioner is a lady. She is ready and willing to abide by any stringent condition imposed by this Court. Hence, the bail applications may be allowed. 8. The learned Public Prosecutors, in unison, opposed the applications. They contended that the petitioner is a history-sheeter. In addition to the above three crimes, the petitioner is also an accused in Crime No.309/2021 of the Mangada Police Station, Crime No.719/2021 of the Kottarakkara Police Station, Crime No.1541/2015 of the Nedumpuzha Police Station, Crime No.331/2021 of the Kadampuzha Police Station, 9 Bail Application Nos. 5698, 6867 and 6868 of 2023 Crime No.1102/2021 of the Tirur Police Station and Crime No.527/2022 of the Malappuram Police Station. All the crimes are registered against the petitioner for allegedly committing the offence under Sec.420 of the Indian Penal Code. If the petitioner is granted an order of pre-arrest bail, it would certainly affect the fair and proper investigation of the case. There is every likelihood of the petitioner tampering with the evidence and intimidating the witnesses. Moreover, she may also flee from justice. Thus, the applications may be dismissed. 10 Bail Application Nos. 5698, 6867 and 6868 of 2023 ## 9. The prosecution allegations in all the three crimes are that the petitioner received money from the defacto complainant assuring that she would do different things. But, she has not done the same. ## 10. 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; 11 Bail Application Nos. 5698, 6867 and 6868 of 2023 ( _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; ( _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. ## 11. Likewise, in _**Gurbaksh Singh Sibbia v. State of**_ ## _**Punjab**_ **, (1980) 2 SCC 565** ] the Hon’ble Supreme Court has ## held as follows: 21. The High Court says in its fourth proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a “special case” for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary 12 Bail Application Nos. 5698, 6867 and 6868 of 2023 power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not “unguided or uncanalised”, the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special case” for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a “special case”. We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 12. After bestowing my anxious consideration to the materials on record and particularly taking note of the grave and serious accusations levelled against the petitioner and considering the fact that in addition to these three cases, there are seven other crimes registered against the petitioner for the very same offence under Sec.420, I am of the definite view that the petitioner is not entitled to invoke the extra ordinary powers of this Court under Sec.438 of the Code. 13 Bail Application Nos. 5698, 6867 and 6868 of 2023 Theretofore, I am of the view that these are not fit cases to grant orders of pre-arrest bail. Hence I am not inclined to entertain these bail applications, which are devoid of any merits. 13. Nonetheless, I am of the view that, in case the petitioner surrenders before the Investigating Officer of the concerned Police Stations within a period of ten days from today, she shall be interrogated and, thereafter, she be produced before the jurisdictional Magistrates on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Courts shall, untrammelled by any observations in this order, consider the bail applications on their merits and as expeditiously as possible. If the 14 Bail Application Nos. 5698, 6867 and 6868 of 2023 petitioner fails to surrender before the Investigating Officers as directed above, the Investigating Officers shall be free to arrest the petitioner as if no order has been passed in these cases. sd/- sks/15.1.2024 **C.S.DIAS, JUDGE** 15 Bail Application Nos. 5698, 6867 and 6868 of 2023 ## **`APPENDIX OF BAIL APPL. 5698/2023`** ``` PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE FIR NO. 462/2023 DATED 19.06.2023 Annexure -A2TRUE COPY OF THE DOCUMENT DATED 03.05.2017 ``` 16 Bail Application Nos. 5698, 6867 and 6868 of 2023 ## **`APPENDIX OF BAIL APPL. 6867/2023`** ``` PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE FIR NO. 769/2023 DATED 03.07.2023 OF THE KOTTAKKAL POLICE STATION, MALAPPURAM DISTRICT ``` 17 Bail Application Nos. 5698, 6867 and 6868 of 2023 ## **`APPENDIX OF BAIL APPL. 6868/2023`** ``` PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE FIR NO. 821/2023 DATED 13.07.2023 OF THE KOTTAKKAL POLICE STATION, MALAPPURAM DISTRICT ```