Prasoon K. K. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 9969 OF 2023 ``` ``` CRIME NO.676/2023 OF Edakkad Police Station, Kannur ``` ``` PETITIONER(S)/3RD ACCUSED IN CR.NO.676/2023 EDAKKAD POLICE STATION: ``` ``` PRASOON.K.K, AGED 36 YEARS AWHO FLAT NUMBER 2012, SILVER SAND ISLAND, VYTILLA PO. PIN 682019, NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 682019 ``` ``` BY ADV NISHIN GEORGE VIJAYABABU ``` ## **`RESPONDENT(S):`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER, EDAKKAD POLICE STATION, MUZHAPPILANGAD , MUZHAPPILANGAD PIN- 670662, KANNUR ``` ## **`OTHER PRESENT:`** ``` sr pp sri c s hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.9969 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No.9969 OF 2023 ------------------------------------------------------Dated this the 5[th ] day of April, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is presently the first accused in Crime No.676/2023 of the Edakkad Police Station, Kannur, registered against the accused for allegedly committing the offence punishable under Section 420 and read with Section 34 of the Indian Penal Code. 3. The essence of the prosecution case is that: the accused, in furtherance of their common intention, induced the de-facto complainant to pay them an ``` 3 ``` ``` BAIL APPL. NO.9969 OF 2024 ``` amount of Rs. 5,50,000/- on various dates to secure an employment for her son in Indian Air force. However, the accused did not secure the employment or return the money. Thus, the accused have committed the above offences. 4. Heard; Sri. Nishin George the learned counsel appearing for the petitioner and Sri. C.S. Hrwthik, the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The offence under section 420 will not be attracted to the case. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre arrest bail. 6. The learned Public Prosecutor seriously opposed the application. He submitted that there are ``` 4 ``` ``` BAIL APPL. NO.9969 OF 2024 ``` incriminating materials to substantiate the involvement of the petitioner in the crime. 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 hamper the investigation. Hence, the application may be dismissed. 7. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed 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 ``` 5 ``` ``` BAIL APPL. NO.9969 OF 2024 ``` 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). ## xxx xxx xxx xxx 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 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 xxx”. ``` 6 ``` ``` BAIL APPL. NO.9969 OF 2024 ``` 9. 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 facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 10. On a consideration of the facts, the materials placed on record and the rival submissions made across the Bar, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioners, that the investigation in the case is at the preliminary stage, that the petitioner’s ``` 7 ``` ``` BAIL APPL. NO.9969 OF 2024 ``` custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the petitioner has not made out 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 fit case to grant an order of pre-arrest bail. Consequently, the bail applications are dismissed. Sd/- **C.S. DIAS, JUDGE** mus ``` 8 ``` ``` BAIL APPL. NO.9969 OF 2024 ``` ## **`APPENDIX OF BAIL APPL. 2116/2024`** ``` PETITIONER’S ANNEXURES Annexure A-1THE COMPUTER PRINTOUT REGARDING THE EXECUTION OF THE DOCUMENT NO.278/2018 IN FAVOUR OF THE PETITIONER, OBTAINED FROM THE WEBSITE OF KERALA REGISTRATION DEPARTMENT ``` ``` Annexure A-2TRUE COPY OF THE ORDER DATED 02.03.2024 IN CRL.MC NO.292/2024 OF THE SESSIONS COURT, KOZHIKODE Annexure A-3TRUE COPY OF THE TREATMENT RECEIPT DATED 27.11.2023 ISSUED FROM IDEAL HEALTHCARE, MAJERI, MALAPPURAM DISTRICT Annexure A4TRUE COPY OF THE JUDGMENT DATED 12.03.2024 IN CRL.MC NO.318/2024 OF THE SESSIONS COURT, KOZHIKODE ``` ## **`RESPONDENT’S ANNEXURES: NIL`**