SABEENA M. S v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, ``` # **`1945`** ``` BAIL APPL. NO. 3014 OF 2023 CRIME NO.301/2023 OF ARANMULA POLICE STATION, ``` ## **`PATHANAMTHITTA`** ## **`PETITIONER/ACCUSED(A1):`** ``` SABEENA M. S AGED 39 YEARS D/O SAIDUMUHAMMAD MAVUMKAL HOUSE, NARANGANAM NORTH P.O. KOZHENCHERRY, PATHANAMTHITTA, PIN - 689642 BY ADVS. K.S.ARUN KUMAR AMRUTHA P S VIJAY SANKAR V.H. SAQIB RIZWAN JERIN JOSEPH ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADV SMT. SEETHA S. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.3014 OF 2023 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 3014 OF 2023 ------------------------------------------------------Dated this the 29[th] day of February, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.301/2023 of the Aranmula Police Station, Pathanamthitta registered against accused for allegedly committing the offences punishable under Sections 406, 408 and 409, 420 read with Section 34 of the Indian Penal Code. 3. The essence of the prosecution case is that: the first accused while she was discharging her duty as the Secretary in-charge of the Naranganam Service Co- ``` 3 ``` ## **`BAIL APPL. NO.3014 OF 2023`** operative Bank Ltd. (in short, ‘Bank’), committed misappropriation of the Bank’s money and later, redeposited the amount. But, in the process she caused a loss of Rs.2,57,178/- (Rupees two lakh fifty seven thousand one hundred and seventy eight only) to the Bank. Thus, the accused has committed the above offences. 4. Heard; Sri. K. S. Arun Kumar, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor. 5. The learned counsel 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 crime has been registered as early as on April 2023. The investigation in the case is practically complete. In any case, the petitioner’s custodial is not and no interrogation necessary ``` 4 ``` ``` BAIL APPL. NO.3014 OF 2023 ``` recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She contended that the petitioner had misappropriated Rs.27/- lakh on 23.04.2021 and 28.09.2021 by diverting the funds from the Bank’s account to her personal account. Although, she repaid the amount, the Bank has suffered a loss of Rs.2,57,178/-. The petitioner’s custodial interrogation is necessary and 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 ``` 5 ``` ``` BAIL APPL. NO.3014 OF 2023 ``` 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 Satishchandra Ratanlal 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 ``` 6 ``` ``` BAIL APPL. NO.3014 OF 2023 ``` 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 matter of grant of bail and in the event of there being some doubt as to ``` 7 ``` ``` BAIL APPL. NO.3014 OF 2023 ``` 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 selfimposed 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 grant of anticipatory bail. The Court has to be prima ``` 8 ``` ## **`BAIL APPL. NO.3014 OF 2023`** facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 9. On an anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, especially on comprehending the seriousness, gravity and nature of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am convinced that the petitioner has not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant 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 ``` 9 ``` ``` BAIL APPL. NO.3014 OF 2023 ``` 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. 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** BR ``` 10 ``` ``` BAIL APPL. NO.3014 OF 2023 ``` ## **`APPENDIX OF BAIL APPL. 3014/2023`** ``` PETITIONER’S ANNEXURES Annexure-ITHE TRUE COPY OF FIR IN CRIME NO.301/2023 OF ARANMULA POLICE STATION, PATHANAMTHITTA DATED 03.04.2023 IS PRODUCED HEREWITH AND MARKED AS ANNEXURE-I. ``` ``` Annexure-IIA TRUE COPY OF THE CASH DEPOSIT RECEIPT FOR RS. 1,63,014/- DATED 25.03.2023 IS ATTACHED HEREWITH AND MARKED AS ANNEXURE-II. Annexure-IIIA TRUE COPY OF THE CASH DEPOSIT RECEIPT FOR RS. 72,740/- DATED 25.03.2023 IS ATTACHED HEREWITH AND MARKED AS ANNEXURE-III. Annexure-IVA TRUE COPY OF THE CASH DEPOSIT RECEIPT FOR RS. 49,726/- DATED 25.03.2023 IS ATTACHED HEREWITH AND MARKED AS ANNEXURE-IV. ``` ## **`RESPONDENT’S ANNEXURES: NIL`**