Rajani v. State of Kerala and Ashok Kumar

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 4465 OF 2024` ``` CRIME NO.916/2024 OF KOTTARAKKARA POLICE STATION, KOLLAM ``` ## `PETITIONER:` ``` RAJANI AGED 35 YEARS D/O LALITHA, EDAKUNNILVEEDU, PULAMON P.O., MYLOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT., PIN – 691531 ``` ``` BY ADVS.K.V.ANIL KUMAR SWAPNA VIJAYAN RADHIKA S.ANIL ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN – 682031 2ASHOK KUMAR S/O VEERABHADRAYYA, SAMRUDHI, INDIRA NAGAR, SATHYAMANGALAM LAY OUT, HASSAN, KARNATAKA. NOW WORKING AS:- CHIEF MANAGER, CANARA BANK, KOTTARAKKARA BRANCH, KOLLAM DISTRICT, KOLLAM DISTRICT., PIN – 691531 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.4465/2024_ _-:2:-_ _Dated this the 10[th] day of June, 2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No.916/2024 of the Kottarakkara Police Station, Kollam, which is registered against her for allegedly committing the offences punishable under Sections 406 & 420 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The crux of the prosecution allegation is that: while the accused was working as a last grade servant in the Canara Bank, Kottarakkara branch, during the period from 04.12.2021 to 19.03.2024, she had misappropriated Rs.2,47,000/- on 28 occasions through _B.A.No.4465/2024_ _-:3:-_ the bank account bearing No.268110100190 of one Rajamma by submitting fabricated withdrawal forms by forging her thump impression. Thus, the accused has committed the above offences. 4. Heard: Sri. K.V. Anil Kumar, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. A reading of the First Information Report [FIR] would substantiate that the offences under Sections 420 & 406 will not be attracted. The prosecution allegation that the petitioner had forged the withdrawal memos of Smt. Rajamma is unbelievable. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Moreover, the petitioner is a lady. Therefore, the petitioner is entitled to an order of pre-arrest bail. _B.A.No.4465/2024_ _-:4:-_ 6. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner with an intention to cheat the Bank and had forged the withdrawal form of their customer by putting the thump impression of Rajamma and withdrawing an amount of Rs.2,47,000/-. The petitioner’s custodial interrogation is necessary, and recovery is to be effected for the purpose of a proper and full investigation of the crime. If the petitioner is granted an order of pre-arrest bail, it would certainly torpedo the investigation. Hence, the application may be dismissed. 8. The prosecution allegation against the petitioner is that, while she was working as a last grade servant in the Canara Bank, she fabricated the withdrawal forms of a customer of the Bank by forging the thump impression of the customer and withdrawing Rs.2,47,000/-. _B.A.No.4465/2024_ _-:5:-_ 9. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme 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). 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 _B.A.No.4465/2024_ _-:6:-_ 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” 10. 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. _B.A.No.4465/2024_ _-:7:-_ 11. On an anxious consideration of the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations levelled against the petitioner, prima-facie finding the petitioner's complicity in the crime, that the petitioner’s custodial interrogation is necessary, and recovery is to be effected, I am of the definite view that the petitioner has not made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that this is not a fit case to grant order of pre-arrest bail. 12. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, she shall be interrogated and, thereafter, be produced before the jurisdictional Court _B.A.No.4465/2024_ _-:8:-_ 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 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** DST/10.06.24 //True copy// P.A. To Judge