ROGER TS v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 ``` ## **`BAIL APPL. NO. 410 OF 2024`** ## **`CRIME NO.798/2023 OF MAVELIKKARA POLICE STATION, ALAPPUZHA`** ## **`PETITIONER/ACCUSED NO.1:`** ``` ROGER TS ``` ``` S/O THANKARAJ, PROPRIETOR, ALPHA MARY INTERNATIONAL, PATTOM, THIRUVANANTHAPURAM, PIN - 695004 ``` ``` BY ADVS. R.SUNIL KUMAR A.SALINI LAL NIKITHA SURESH ADITYA DEV ``` ## **`RESPONDENT:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SR PUBLIC PROSECUTOR SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.410 of 2024 2 ## **Dated this the 29[th ] day of January, 2024** ## **ORDER** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.798/2023 of the Mavelikkara Police Station, Alappuzha registered against him and nine other accused for allegedly committing the offence punishable under Section 420 r/w Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: the accused in furtherance of their common intention, received an amount of Rs.10,00,000/- on different occasions during 2021 from the de facto complainant assuring him to secure admission in the University of Bedfordshire for Msc International Business with Data Analytics. However, the accused did not secure the admission or return the said B.A.No.410 of 2024 3 amount. Consequently, the de facto complainant filed a complaint before the jurisdictional Magistrate and the same was forwarded to the police and the above crime was registered. Thus, the accused have committed the above offences. 4. Heard; Sri.R.Sunil Kumar, the learned counsel appearing for the petitioner and Sri.C.S. Hrithwik, the learned Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. The petitioner and other accused were running a consultancy service. It is only due to Covid-19 pandemic, the accused were unable to secure the admission for the de facto complainant. In fact the accused had transferred the entire fees received from the de facto complainant to the University. It is only due to the reasons beyond their control that they could not secure the admission. At any rate, the petitioner’s custodial B.A.No.410 of 2024 4 interrogation is not necessary. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor strenuously opposed the application. He contended that the petitioner is a person with criminal antecedents. He is involved in 14 other crimes. The petitioner was in judicial custody in all other cases. If the petitioner is granted an order of pre arrest bail, there is every likelihood of him influencing the witnesses and tampering with evidence. Moreover, recovery is to be effected. The petitioner’s custodial interrogation is necessary. 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 B.A.No.410 of 2024 5 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 B.A.No.410 of 2024 6 149 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 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 B.A.No.410 of 2024 7 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. 9. After bestowing my anxious consideration to the materials placed on record, the rival submissions made across the Bar, and taking into account the criminal antecedents of the petitioner, that the custodial interrogation of the petitioner is necessary and that the investigation in the case is in progress, I am of the definite view that the petitioner is not entitled to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant B.A.No.410 of 2024 8 an order of pre-arrest bail. Consequently, the bail application is 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 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** rmm/29/1/2024