Prassanan v. The State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Abraham Mathew
Judgment Date: 2018-12-12
Court Decision / Holding: In the result, this Crl.M.C. is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Prassanan

Respondents

State of Kerala
N. Ruby Raj

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Rajeev
• Sri D. Feroze
• Sri K.K. DheerendraKrishnan
• Sri V. Vinay

Counsels for Respondents

• Sri Pooja Pankaj
• Sri M. Revikrishnan
• Sri P. Vijaya Bhanu (Sr.)
• Sri A. Alex M. Thombra, Sr. Public Prosecutor

Case Synopsis & Summary

Prassanan, the de facto complainant, challenges Crl.M.C. 4671/2017, challenging the order dated 09-03-2017 of the Judicial Magistrate of First Class, Mavelikkara, granting bail to the second respondent in Crime No. 1981/2015. The second respondent, N. Ruby Raj, is an advocate who allegedly acted as an intermediary for filing two civil suits and a criminal complaint after the petitioner advanced money for court fees and expenses. The case alleges forgery in the petitioner’s signatures on plaints alleging full payment of court fees, whereas the plaints filed in court claimed only a tenth payment. The petition contends that the second respondent’s misappropriation and suppression of information regarding prior restraints and bail proceedings amount to fraud, and that the bail order should be set aside. The court heard submissions from the petitioner and the Public Prosecutor. It cites Rukmani Mahato v. State of Jharkhand to illustrate that surrender in the face of restraint orders may amount to abuse of process; it also notes Gurbaksh Singh Sibbia on custodial aspects under Section 27 of the Evidence Act. Ultimately, the court finds no necessity for police custody and declines to interfere with the bail, dismissing the Crl.M.C. The result is that the bail order stands; the petition is dismissed.

Provisions of Law Cited

Section 409 IPCSection 420 IPCSection 468 IPCSection 482 Cr.P.C.Section 27 of the Indian Evidence Act

Legal Doctrines & Maxims

Abuse of process of law
Police custody under Section 27 of the Evidence Act (Gurbaksh Singh Sibbia principle)
Surrender in the face of restraint order can amount to abuse of process (as discussed in Rukmani Mahato)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the bail order granted to the second respondent was obtained by fraud or suppression of material information, including the prior restraint order. He relies on the Supreme Court’s decision in Rukmani Mahato v. The State of Jharkhand to argue that surrender in contravention of a restraint order constitutes abuse of process and could justify interference with bail. He also argues that the court should protect the petitioner’s interests given forged signatures and misappropriation of funds used for filing suits.

Contentions of Respondents

The respondents submit that the Magistrate considered the bail application on its merits and that the restraint order directing non-arrest was not a bail order. They contend there is no demonstrated necessity for police custody under Section 27 of the Evidence Act. They urge the court to refrain from interfering with a discretionary bail order when the investigation has not shown a causal link to custody or ongoing prejudice to the case.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Rukmani Mahato v. The State of Jharkhand	Spl. Leave Petition No.2411/2016	Positive	Cited in support of the argument that surrender in the face of an order restraining arrest can amount to abuse of process; used to argue that such a consideration alone may not automatically set aside bail.
Gurbaksh Singh Sibbia etc. v. The State of Punjab	AIR 1980 SC 1632	Positive	Constitution Bench decision cited to discuss the possibility of police custody under Section 27 of the Evidence Act and the circumstances under which custody can be sought even where bail is granted.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940** **Crl.MC.No. 4671 of 2017** **AGAINST THE ORDER/JUDGMENT IN CMP 967/2017 of J.M.F.C.-I, MAVELIKKARA DATED 09-03-2017** **CRIME NO. 1981/2015 OF Mavelikkara Police Station , Alappuzha** ## **PETITIONER/DEFACTO COMPLAINANT:** **PRASSANAN AGED 49 YEARS,S/O.KARUNAKARAN, KANNAMKOMATH, KADUVINAL.P.O, VALLIKUNNAM, MAVELIKARA, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENT/STATE/ACCUSED:** **1 STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031, (CRIME NO.1981/2015 OF MAVELIKKARA POLICE STATION, ALAPPUZHA DISTRICT).** Crl.M.C. 4671/17 ## **-:2:-** **2 N.RUBY RAJ ADVOCATE,S/O.NATARAJAN, KAMBISSERIL VEEDU, KOTTARAKKAVU MURI,MAVELIKARA, ALAPPUZHA DISTRICT-690101.** **BY ADVS. SMT.POOJA PANKAJ SRI.M.REVIKRISHNAN SRI.P.VIJAYA BHANU (SR.)** **SRI. ALEX M.THOMBRA, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. 4671/17 **-:3:-** ## **ORDER** On the information given by the petitioner Crime No.1981 of 2015 was registered at Mavelikkara Police Station for the offences under Sections 409, 420 and 468 IPC. The second respondent is the accused. He is an advocate practicing in the courts at Mavelikara. The prosecution case is this : Three persons owed the petitioner certain amounts. The petitioner engaged the second respondent to file a complaint in the criminal court and to file two suits in civil courts in respect of the transactions. The second respondent filed a complaint. The accused was acquitted. The second respondent did not inform the petitioner about it. The former received from the petitioner certain amount towards court fees and other expenses for filing the two suits. The second respondent filed two suits. The petitioner realised that the second respondent had remitted only one tenth of the court fees and the plaints were rejected for nonpayment of the balance court fees. The second respondent filed applications to restore the suits to file. They were also Crl.M.C. 4671/17 ## **-:4:-** dismissed. In the plaint in which the petitioner’s signatures were obtained there was a recital that the full court fees was being paid. But in the plaint filed in the court the statement was that only one tenth of the court fees was being paid at the time of the institution of the suit. The signatures of the petitioner were forged in the applications filed to restore the suits to file. The second respondent filed Crl.M.C. No. 122 of 2016 in this court under section 482 Cr.P.C. in which this court restrained the investigating officer from arresting him. But suppressing this fact the second respondent surrendered before the learned Magistrate, who granted him regular bail, which is produced in the case as Annexure-VII. The application filed by the investigating officer for obtaining custody of the second respondent was dismissed by Annexure-VIII order on the very same day. The petitioner is aggrieved by the order. The prayer in this Crl.M.C is to set aside the order granting bail to the second respondent. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. Learned counsel for the petitioner relies on the decision of the Supreme Court in **Rukmani Mahato v. The State of** Crl.M.C. 4671/17 ## **-:5:-** **Jharkhand** (Spl. Leave Petition No.2411/2016) in support of his argument that the bail order was obtained by committing fraud upon the leaned Magistrate. According to him when this court had seized of the matter and passed an order restraining arrest of the second respondent, he should not have surrendered before the court below suppressing it and the learned Magistrate should not have granted him regular bail. In the above case the Supreme Court has held that surrender of the accused in such circumstances is nothing but an abuse of the process of the law. 4. But that alone cannot be a ground to set aside the bail granted to the second respondent because the learned Magistrate considered the matter on merits also. That apart, the order restraining arrest was not passed on a bail application. 5. The learned counsel submits that police custody of the second respondent was necessary in order to recover the plaint in which the second respondent had obtained the signature of the petitioner. In **Gurbaksh Singh Sibbia etc. v. The State of Punjab** (AIR 1980 SC 1632) a Constitution Bench has held that even in a case in which anticipatory bail has been granted to an accused the police can obtain his custody for the purpose of Section 27 of the Evidence Act. But in this case the investigation Crl.M.C. 4671/17 ## **-:6:-** conducted so far has not revealed the necessity of custody of the second respondent. In the bail order the learned Magistrate has directed the second respondent to appear before the investigating officer. The investigating officer has no case that he has obtained information from the second respondent for the purpose of Section 27 of the Evidence Act. So it cannot be held that custody of the second respondent is necessary for the purpose of Section 27 of the evidence Act. For the reasons stated above, I am not inclined to interfere with the order passed by the learned Magistrate. In the result, this Crl.M.C. is dismissed. ## **Sd/-** **K.ABRAHAM MATHEW JUDGE** vps 17/12 Crl.M.C. 4671/17 **-:7:-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE I** **TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, MAVELIKARA** **ANNEXURE II TRUE COPY OF THE FIR IN CRIME NO.1981/2015 OF MAVELIKKARA POLICE STATION** **ANNEXURE III TRUE COPY OF THE ORDER DATED 27.01.2016 IN CRL.M.APPL.NO.186/2016 IN CRL.MC NO.122/2016 OF THIS HON'BLE COURT** **ANNEXURE IV TRUE COPY OF THE REPORT FROM FORENSIC SCIENCE LABORATORY DATED 02.02.2017** **ANNEXURE V TRUE COPY OF THE PETITION SUBMITTED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS,MAVELIKKARA** **ANNEXURE VI TRUE COPY OF THE CUSTODY APPLICATION SUBMITTED BY THE INVESTIGATING OFFICER** **ANNEXURE VII CERTIFIED COPY OF THE ORDER DATED 09.03.2017 IN CMP NO.967/2017 IN CRIME NO.1981/2015 PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS-I,MAVELIKARA GRANTING BAIL TO THE 2ND RESPONDENT** Crl.M.C. 4671/17 **-:8:-** **ANNEXURE VIII COPY OF THE ORDER DATED 09.03.2017 IN CMP NO.966/2017 IN CRIME NO 1981/2015 PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS-I,MAVELIKARA.** **RESPONDENT'S/S' EXHIBITS:** ## **NIL** ## **/True Copy/** **vps PS to Judge**