Rasheed v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945 ``` ``` BAIL APPL. NO. 238 OF 2024 ``` ``` CRIME NO.921/2022 OF NOORANADU POLICE STATION, ALAPPUZHA ``` ## `PETITIONER/SUSPECTED ACCUSED:` ``` RASHEED AGED 47 YEARS S/O PICHAKANNA, SHAMILA MANZIL, PALLIVETTACHERRY, ARYANAD VILLAGE, THIRUVANANTHAPURAM DISTRICT, NOW RESIDING AT SS MANZIL (HOUSE NO.221), NEAR SWASTHY MARMA CLINIC, KARET MURI, PULIMATH VILLAGE, THIRUVANANTHAPURAM, PIN - 695612 ``` ``` BY ADV LATHEESH SEBASTIAN ``` ## `RESPONDENTS/STATE:` ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 DEPUTY SUPERINTENDENT OF POLICE UNIT 1, CRIME BRANCH (ECONOMIC OFFENCE), ALAPPUZHA, PIN - 688001 3 STATION HOUSE OFFICER NOORANAD POLICE STATION, ALAPPUZHA DISTRICT, PIN - 690504 BY SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.238 of 2024 ## -:2:- ## **O R D E R** Dated this the 22[nd] day of January, 2024 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 8[th] accused in Crime No.921/2022 of the Nooranadu Police Station, Alappuzha, registered against the accused (eight in number) for allegedly committing the offences punishable under Sections 489(A), 489(B), 489(C) 489(D) and 120B r/w Section 34 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The gist of the prosecution case is that: the first accused went to a supermarket of the de facto complainant on 08.12.2022, purchased articles, handed over a fake currency of Rs.500/- and received the balance amount. Again on 14.12.2022, the first accused visited the same place and purchased articles by giving B.A.No.238 of 2024 ## -:3:- similar counterfeit currencies. The de facto complainant informed the police after restraining the lady. The police recovered the counterfeit currencies from the first accused. In the investigation it was revealed that other accused are also involved in the crime. Thus, the accused have committed the above offences. 4. Heard; Sri. Latheesh Sebastian, the learned counsel appearing for the petitioner and Sri. C.S, Hrithwik., the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to link the petitioner with the above crime. The petitioner is willing to abide by any condition that may be imposed by this Court and cooperate with the investigation. Hence, an order of pre-arrest bail may be passed. B.A.No.238 of 2024 -:4:- 6. The learned Public Prosecutor opposed the application. He submitted that the Crime Branch has taken over the investigation. He made available the report of the Investigating Officer. He submitted that the custodial interrogation of the petitioner is absolutely necessary to unveil the truth. The recovery is to be effected. 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 B.A.No.238 of 2024 ## -:5:- 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 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; B.A.No.238 of 2024 ## -:6:- (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 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 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 B.A.No.238 of 2024 ## -:7:- 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. 9. After bestowing my anxious consideration to the materials placed on record, particularly taking note of the nature, gravity, and seriousness of the offences alleged against the petitioner, that petitioner’s custodial interrogation is necessary, that the recovery is to be effected, and that the investigation is now handed over to another agency, I am of the definite view that the petitioner is not entitled to invoke the extraordinary 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. Consequently, the bail application is dismissed. 10. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, B.A.No.238 of 2024 -:8:- 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, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. 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** mtk/ 22.01.2024 B.A.No.238 of 2024 ## -:9:- ## `APPENDIX OF BAIL APPL. 238/2024` ``` PETITIONER ANNEXURES ``` ``` Annexure 1TRUE CITIZEN COPY OF THE FIR IN CRIME NO.921/2022 OF NOORANAD POLICE STATION Annexure 2TRUE CITIZEN COPY OF FIR IN CRIME NO.105/2022 OF CHATHANNOOR POLICE STATION, KOLLAM DISTRICT Annexure 3TRUE COPY OF THE ORDER DATED 29.03.2023 IN CRL.MC NO.626/2023 OF SESSIONS COURT, KOLLAM Annexure 4TRUE COPY OF THE NOTICE OF THE 2ND RESPONDENT DATED 01.01.2024 ```