Rafee B., Mohammed Riyas and Gokul Prasad v. State of Kerala, Sub Inspector of Police, Attingal Police Station and Baiju

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945** ## **BAIL APPL. NO. 7517 OF 2023** **CRIME NO.1781/2023 OF ATTINGAL POLICE STATION, THIRUVANANTHAPURAM** **PETITIONER/S:** - **1 RAFEEK B, AGED 39 YEARS S/O BASHEER, KATTAKKALIL,NETAJIPURAM, KOLIAKODE, SHANTHIGIRI, THIRUVANANTHAPURAM, PIN - 695589** - **2 MOHAMMED RIYAS, AGED 42 YEARS S/O MOHAMMED,R/O NAVAS MANZIL,MANAKKAD, VADAKKEVILA,KOLLAM, PIN - 691010** - **3 GOKUL PRASAD, AGED 38 YEARS S/O SIVA PRASAD,R/O" THRIPRASADAM",VANCHIYUR P.O., ALAMCODE, ATTINGAL,THIRUVANANTHAPURAM, PIN - 695102** **BY ADVS. M.ZIYAD T.A.PRAKASH** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM PIN – 682031 (CRIME NO. 1781 OF 2023 OF ATTINGAL POLICE STATION, THIRUVANANTHAPURAM DISTRICT),** - **2 SUB INSPECTOR OF POLICE, ATTINGAL POLICE STATION,THIRUVANANTHAPURAM DISTRICT, PIN - 695101** - **3 BAIJU , S/O NANDAKUMAR, R/O ALAKAPURI, CHEMPOOR DESOM,MUDAKKAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM RURAL. IS IMPLEADED AS R3 AS PER ORDER DATED 10-10-23 IN CRLA MA 1/23** ## **BY ADV NO ADVOCATE** ## **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO.7517 OF 2023** **2** ## **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 petitioners are the accused 1 to 3 in Crime No.1781/2023 of the Attingal Police Station, Thiruvananthapuram, which has now been re-registered by the Crime Branch, Thiruvananthapuram against the accused (6 in number) for allegedly committing the offence punishable under Section 420 r/w 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: the accused in furtherance of their common intention to misappropriate money of the defacto complainant, the first accused made the defacto complainant believe that she is a financial consultant. She showed gold stock to the defactocomplainant and made him believe that, if the gold stock was **BAIL APPL. NO.7517 OF 2023** **3** sold they could make excessive profit. Consequently, on 16.05.2023, the first accused took the defacto complainant to a jewellery shop named 'Nilavara Jewellary' at Venjarammood. The defacto complainant paid Rs.5/- lakh to the Jewellery on behalf of the first accused and the first accused gave him Rs.25,000/- as profit. By winning the confidence of the defacto complainant, the accused made him transfer Rs.10/- lakh to the account of the third accused and Rs.6/- lakh to the bank account of the fourth accused. Towards the profit of the above investments, the first accused gave the defacto complainant a gold chain weighing 4.5 sovereigns. Thereafter, the accused 1 and 2 again made the defacto complainant invest Rs.2.5/- crore with them. The defacto complainant had registered 12.5 cents of land worth Rs.87 lakh in favour of the accused 2 and 4 as instructed by the first accused. There were several other transactions between the accused and the defacto complainant. But, the accused did not give profit or return the capital. Thus, the accused have cheated and committed the above offences. **BAIL APPL. NO.7517 OF 2023** **4** 4. Heard; Sri.T.A.Prakash, the learned counsel appearing for the petitioners and Smt. Neema T.V., the learned Public Prosecutor. 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. Initially, the petitioners 2 and 3 have not been named as accused. Even if the allegations in Annexure AI FIR are taken on its face value it would show that the transactions are purely civil in nature. At any rate, the petitioners' custodial interrogation is not necessary. The petitioners are willing to cooperate with the investigation and abide by any stringent condition that may be imposed by this Court. 6. The learned Public Prosecutor seriously opposed the application. She contended that the accused have cheated the defacto complainant Rs.2.5/- crore. Consequently, the investigation has been transferred to the Crime Branch as per the Order No.D1-56206/2023/T dated 05.08.2023 of the District Police Chief, Thiruvananthapuram **BAIL APPL. NO.7517 OF 2023** **5** Rural. The investigation is in progress. The petitioners' custodial interrogation is necessary and recoveries have to be effected. If the petitioners are granted an order of prearrest bail, 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 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; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone **BAIL APPL. NO.7517 OF 2023** **6** 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 **BAIL APPL. NO.7517 OF 2023** **7** 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 pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. ## 9. 10. In **P. Chidambaram v. Directorate of** **Enforcement** [(2019) 9 SCC 24], the Hon'ble Supreme Court has observed thus: “69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an **BAIL APPL. NO.7517 OF 2023** **8** offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 10. After bestowing my anxious consideration to the facts, materials placed on record, the rival submissions made across the Bar, and on comprehending the nature, seriousness and gravity of the economic offence alleged against the petitioners, that the investigation in the case is at the preliminary stage, that the petitioners' custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the petitioners have not made any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. ## Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS** **JUDGE** **shg**