RESHMA JINESH v. STATE OF KERALA

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 4122 OF 2024` ``` CRIME NO.430/2024 OF PAYYANNUR POLICE STATION, KANNUR ``` ## `PETITIONER:` ``` RESHMA JINESH, AGED 42 YEARS W/O JINEESH M., AGED 42 YEARS, TEACHER, CURRENTLY RESIDING AT 'AYODHYA', PALLIKKUNNU P.O., KANNUR, PIN – 670002 ``` ``` BY ADVS.MAHESH V RAMAKRISHNAN PRAVEEN K.S. ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.4122/2024_ _-:2:-_ _Dated this the 3[rd] 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.430/2024 of the Payyannur Police Station, Kannur, registered against her for allegedly committing the offences punishable under Sections 379, 403, 405, 406, 408 & 420 of the Indian Penal Code, 1860. 3. The essence of the prosecution case is that: the accused was working as the Central Head Teacher of an educational institution where the de-facto complainant is the Managing Partner. The accused, with an intention to cheat and make unlawful profit, created confusion among the students in the school and admitted the students in a new school named _B.A.No.4122/2024_ _-:3:-_ ‘Camp Kids’ . The accused misappropriated Rs.12,00,000/- given by the students by transferring the amount to her bank account. She also committed theft of certain documents of the school during the period from 20.03.2024 to 27.03.2024. Thus, the accused has committed the above offences. 4. Heard; Sri. Mahesh V Ramakrishnan, the learned counsel appearing for the petitioner and Smt. Seetha S, the learned Senior Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. She has been falsely implicated in the crime. The petitioner is a woman. In fact, it is only because the petitioner left the services of the school of the de-facto complainant, a false complaint has been filed against the petitioner. The de-facto complainant made an _B.A.No.4122/2024_ ## _-:4:-_ attempt to outrage the modesty of the petitioner. She had filed a private complaint before the Judicial First Class Magistrate, Payyannur, pursuant to which a crime has been registered. The present case is only a counterblast to the complaint filed by the petitioner. The petitioner's custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate the involvement of the petitioner in the above crime. The petitioner had started a new school and took away the children from the present school, that too, after taking all the documents of the present school. She has also siphoned of Rs.12,00,000/- given by the students. The _B.A.No.4122/2024_ ## _-:5:-_ petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that she, with an intention to cheat the de-facto complainant’s school, took away the documents of the school admitted the students of the school in a new school and also misappropriated an amount of Rs.12,00,000/- given by the students. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: “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 _B.A.No.4122/2024_ _-:6:-_ 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 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” ## 9. In **Jai Prakash Singh v. State of Bihar and** _B.A.No.4122/2024_ _-:7:-_ **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. After bestowing my anxious consideration to 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 leveled against the petitioner, that the petitioner’s custodial interrogation is necessary, and recovery is to be effected, I am convinced that the _B.A.No.4122/2024_ ## _-:8:-_ petitioner has not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, 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** DST/03.06.24 //True copy// P.A. To Judge