Ratheesh A. v. State of Kerala (Bail Applications Nos. 10001 & 10006 of 2023)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 BAIL APPL. NO. 10001 OF 2023** **CRIME NO.1564/2022 OF TOWN EAST POLICE STATION, THRISSUR** ## **PETITIONER/S:** **RATHEESH.A, AGED 41 YEARS S/O RAMAKRISHNAN.K.,ANEDATH HOUSE, KECHERI VIA.,CHEMMANTHATTA, TALAPPILLY THRISSUR, KERALA, PIN - 680501** ## **BY ADV K.RAJESH KANNAN** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 SREEJITH KRISHNA, PALLIYANA, ARIMBURATH HOUSE, MULLUR, PARAPPUR,THRISSUR DISTRICT, PIN - 680552** ## **OTHER PRESENT:** **SR PP SMT SEETHA S ,SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2024 ALONG WITH B.A.NO.10006/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.Nos.10001 & 10006 of 2023 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945** **BAIL APPL. NO. 10006 OF 2023** **CRIME NO.977/2022 OF TOWN WEST POLICE STATION, THRISSUR** ## **PETITIONER/S:** **RATHEESH.A. AGED 41 YEARS S/O RAMAKRISHNAN.K ANEDATH HOUSE KECHERI VIA., CHEMMANTHATTA, TALAPPILLY, THRISSUR DISTRICT, KERALA, PIN - 680501** **BY ADV K.RAJESH KANNAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 RADHA MENON W/O P.S. MENON, ASWATHY HOUSE, KOTTAPPURAM ROAD, POONKUNNAM, THRISSUR CITY, THRISSUR DISTRICT,, PIN - 680002** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2024 ALONG WITH** **B.A.NO.10001/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.Nos.10001 & 10006 of 2023 3 ## **COMMON ORDER** These applications are filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for orders of prearrest bail. 2. In B.A.No.10001/2023, the petitioner is the second accused in Crime No.1564/2022 of Town East Police Station, Thrissur and in B.A.No.10006/2023, the petitioner is the first accused in Crime No.977/2022 of the Thrissur West Police Station, Thrissur, both registered against him for allegedly committing the offences punishable under Sections 406 & 420 r/w. Section 34 of the Indian Penal Code, 1860 (‘IPC’, for short), and Sections 3 read with Section 21, 4 r/w.22 and 5 r/w.23 of the Banning of Unregulated Deposit Schemes Act, 2019. Since the petitioner is the same in both these bail applications, the applications were consolidated, jointly heard and are being disposed of by this common order. 3. The gist of the prosecution case in the two crimes, is that: the petitioner who was the Chairman of a company named Thiruvithamkoor Nidhi Ltd., along with the accused 3 and 4, B.A.Nos.10001 & 10006 of 2023 4 who are the General Manager and Financial Head of the said company, had collected deposits from the defacto-complainants, assuring them 12% interest per month on the fixed deposits. Accordingly, they made the defacto-complainants deposit substantial amounts. However, the company and the accused failed to return the deposits or to pay any interest. Thus, the accused have committed the above offences. 4. Heard; Sri. Rajesh Kannan, the learned counsel appearing for the petitioner and Smt.Neema T.V. and Smt. Seeetha S., the learned Public Prosecutors appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has no criminal antecedents. The offence alleged under the BUDS Act is not attracted to the facts and circumstances of the case. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and also cooperate with the investigation. At any rate, the custodial interrogation of the petitioner is not necessary. Hence, the applications may be allowed. 6. The learned Public Prosecutors strenuously opposed B.A.Nos.10001 & 10006 of 2023 5 the applications. They submitted that the petitioner has criminal antecedents. There are six cases registered against the petitioner of similar nature by the Thrissur Town East Police Station, Thrissur and four cases registered by the Town West Police Station, Thrissur. The investigation is in progress. The custodial interrogation of the petitioner is necessary and recovery is to be effected. If the petitioner is let off of on prearrest bail, it would hamper with the full and proper investigation of the case. There is every likelihood of the petitioner tampering with the evidence. Hence, the applications may be dismissed. 7. The gist of the prosecution case is that the petitioner along with the other persons in charge of the administration management of the above named company and collected money from the depositors assuring them of 12% interest per month. However, the accused failed to pay any interest or return the principal amount. Thus, they have committed the above offences. 8. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: B.A.Nos.10001 & 10006 of 2023 6 **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 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 B.A.Nos.10001 & 10006 of 2023 7 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. 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 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. 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 B.A.Nos.10001 & 10006 of 2023 8 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 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.” 11. After bestowing my anxious consideration to the materials placed on record, the rival submissions made across the Bar, taking into account the nature, gravity, and seriousness of the offences alleged against the petitioner, which are economic offences, that the petitioner has criminal antecedents, that the investigation in the cases are in progress, that the custodial interrogation of the petitioner is necessary and that recovery is to be effected, I am of the definite view that the petitioner has not made out any exceptional circumstances entitling him to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that this is not a fit case to grant orders of pre-arrest bail. Consequently, the bail applications are dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the B.A.Nos.10001 & 10006 of 2023 9 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** ## **shg**