Pradeep Kumar v. State of Kerala and Jagajeevan M

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 10936 OF 2023 ``` ``` CRIME NO.1106/2023 OF CHAKKARAKKAL POLICE SATION, KANNUR AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.2397 OF 2023 OF DISTRICT COURT & SESSIONS COURT,THALASSERY PETITIONER/ACCUSED NO.1: ``` ``` PRADEEP KUMAR, AGED 54 YEARS S/O. KUNHIRAMAN, YESODA NIVAS, CHEMBILODE, CHALA, KANNUR, PIN - 670621 ``` ``` BY ADVS. ANUPAMA SUBRAMANIAN K.R.SRIPATHI ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 JAGAJEEVAN.M , S/O. GOVINDAN,"SAROJAM", VALIYANNUR,P.O.VARAM, KANNUR IS IMPLEADED AS INTERVENOR VIDE ORDER DATED 12-1-24 IN CRL MA 1/24`** ``` BY ADVS. K.C.SANTHOSHKUMAR K.K.CHANDRALEKHA ``` ``` SR.PUBLIC PROSECUTOR SMT.NEEMA T.V. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. NO.10936 of 2023** ``` 2 ``` ## **Dated this the 2[nd ] day of April, 2024** ## **O R D E R** 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 petitioner is the first accused in Crime No.1106/2023 of the Chakkarakkal Police Station, Kannur, registered against the accused (3 in number) for allegedly committing the offences punishable under Sections 406 and 420 r/w Section 34 of the Indian Penal Code. 3. The essence of the prosecution case is that, the accused, in furtherance of their common intention, had dishonestly induced the de facto complainant and made ``` 3 ``` ## **B.A. NO.10936 of 2023** him to pay an amount of Rs.19,00,000/- on 20.4.2018 and Rs.2.50,000/- on 12.3.2020, on the false assurance that they would arrange a job for his daughter as an Office Assistant in a school. However, the accused failed to secure the employment or return the money. In addition to the above, the accused 2 and 3 also received Rs.1,00,000/- as commission. Thus, the accused have committed the above offences. 4. Heard; Smt.Anupama Subramanian, the learned counsel appearing for the petitioner, Smt. Neema T.V., the learned Senior Public Prosecutor and Sri. K.C. Santhosh Kumar, the learned counsel appearing for the additional second respondent/ de facto complainant. 5. The learned counsel appearing 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 offences under Sections 406 and 420 will not be attracted. The dispute between the ``` 4 ``` ## **B.A. NO.10936 of 2023** parties is purely civil in nature. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Therefore, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor opposes the application. She submitted that there are incriminating materials to substantiate that the petitioner had received the payment from the de facto complainant. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would certainly sabotage the investigation. Hence, the application may be dismissed. 7. The learned counsel appearing for the second respondent/de facto complainant also opposed the application. He has also filed an objection, inter alia, contending that the petitioner is a person with criminal antecedents. If the petitioner is granted an order of prearrest bail, it would hamper the investigation. Hence, ``` 5 ``` ## **B.A. NO.10936 of 2023** the application may be dismissed. 8. On an evaluation of the materials on record, it can be seen that an amount of Rs.19,00,000/- was allegedly received by the petitioner by cheque and Rs.2,50,000/- was transferred to his account on 20.4.2018 and 12.3.2020, respectively. The allegation against the petitioner is that he assured the de facto complainant to secure an employment for his daughter in a school. However, he failed to secure the employment or return the money. 9. The petitioner had moved a similar application before the Court of Session, Thalassery by filing Crl.M.C.No.2397/2023. By Annexure B order, the learned Sessions Judge dismissed the application, on prima facie finding the petitioner’s involvement in the crime and that his custodial interrogation is necessary. 10. Recently, in **Srikant Upadhyay v. State of** **Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme ``` 6 ``` ## **B.A. NO.10936 of 2023** Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “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). xxxx xxxx xxx ## xxxx xxxx xxx 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 **B.A. NO.10936 of 2023** ``` 7 ``` 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 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” ## 11. In **Jai Prakash Singh v. State of Bihar and** **Anr.** [(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 facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and to misuse his liberty. 12. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, and on prima facie finding ``` 8 ``` ## **B.A. NO.10936 of 2023** the petitioner’s involvement in the crime, and further on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, the petitioner’s custodial interrogation is necessary, and recovery is to be effected, I am not satisfied that the petitioner has made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days 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 consider the bail application on its merits. If the petitioner does not surrender before the Investigating ``` 9 ``` ## **B.A. NO.10936 of 2023** 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** ``` rmm/2/4/2024 ```