Riyas v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ``` BAIL APPL. NO. 2205 OF 2024 ``` ``` CRIME NO.664/2023 OF ELAMAKKARA POLICE STATION, ERNAKULAM ``` ``` PETITIONER: ``` ``` RIYAS, AGED 39 YEARS S/O ATHAMANAKATHU ABDUL GAFOOR, OMRATHAMANAKATH HOUSE, THIRUVILWAMALA PO, THRISSUR, PIN – 680588 ``` ``` BY ADVS.GAYATHRI MURALEEDHARAN SARATH M.S. ARATHY P. ANJANA S. RAJ ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.2205/2024_ _-:2:-_ _Dated this the 23[rd] day of July, 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 second accused in Crime No.664/2023 of the Elamakkara Police Station, Ernakulam, which is registered against the accused (10 in number) for allegedly committing the offences punishable under Sections 341, 294(b), 323, 342, 324, 506, 395, 364A, 365 & 368 of the Indian Penal Code, 1860. 3. The gravamen of the prosecution case is that; on 26.04.2024, at around 20.23 hours, the accused, in furtherance of their common intention, abducted the de-facto complainant from Edappally and confined him in illegal custody. They demanded a ransom from him, _B.A.No.2205/2024_ _-:3:-_ inflicted injuries on him, obtained his signatures on the stamp papers, and forcefully made him transfer Rs.1,50,000/- to the bank account of the second accused. Thus, the accused have committed the above offences. 4. Heard: Kum.Gayathri Muraleedharan, 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 him. He has been falsely implicated in the crime. In fact, the de-facto complainant had borrowed money from the petitioner on numerous occasions. It is only to evade the repayment of the said amount that the de-facto complainant has lodged the present false complaint against the petitioner and the other accused. The petitioner is a law abiding citizen without any criminal _B.A.No.2205/2024_ _-:4:-_ antecedents. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to substantiate the petitioner’s involvement in the crime. It was at the instance of the petitioner that the de-facto complainant was abducted, he was assaulted, and he was made to transfer Rs.1,50,000/- to the bank account of the petitioner. The accused Nos.1, 3, 4, 5 & 8 have already been arrested and enlarged on bail by this Court as per the order in B.A.No.4618/2023. The 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 certainly torpedo the entire investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that, the _B.A.No.2205/2024_ _-:5:-_ accused, in furtherance of their common intention, had abducted the de-facto complainant and kept him under their illegal custody and, thereafter, assaulted him, and they made him sign on the blank papers and also transfer Rs.1,50,000/- to the bank account of the second accused/petitioner. 8. On an evaluation of the materials on record, it can be seen that there are incriminating materials to show that the petitioner was very much at the scene of the occurrence, and the de-facto complainant has transferred Rs.1,50,000/- to the bank account of the petitioner. Therefore, prima facie, it can be said that the petitioner is involved in the crime. 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: _B.A.No.2205/2024_ _-:6:-_ “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 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 _B.A.No.2205/2024_ _-:7:-_ 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. 11. On an anxious consideration of the facts, rival submissions made across the Bar, and the materials placed on record, and particularly on comprehending the nature, seriousness, and gravity of the accusations levelled against the petitioner, prima facie there are _B.A.No.2205/2024_ _-:8:-_ incriminating materials to substantiate the petitioner’s involvement in the crime, that the petitioner’s custodial interrogation is necessary, and the recovery is to be effected, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary 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. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within one week from today, he shall be interrogated and, thereafter, 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, consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer _B.A.No.2205/2024_ _-:9:-_ shall be free to arrest the petitioner as if no order has been passed in the case. Sd/- ## **C.S.DIAS,JUDGE** DST/23.07.24 //True copy// P.A. To Judge