Sajeev Karun v. State of Kerala

## **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. 10019 OF 2023** ## **CRIME NO.1412/2023 OF Palakkad Town South Police Station, Palakkad** ## **PETITIONER/S:** SAJEEV KARUN,AGED 47 YEARS, S/O N.K. KARUNAN,KARUNA NIVAS VENGALLUR P.O,VELNGALLUR VILLAGE,THALAPIPPI TALUK, CHELAKKARA, THRISSUR, PIN - 680586 BY ADVS. RENJITH B.MARAR LAKSHMI.N.KAIMAL P.RAJKUMAR KESHAVRAJ NAIR ARUN POOMULLI PREETHA S CHANDRAN ABHIJITH SREEKUMAR ANAND REMESH ABHIRAM.S. C.R.REKHA VISWANATH JAYAN ## **RESPONDENT/S:** 1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER,PALAKKAD TOWN SOUTH POLICE STATION,KUNNATHURMEDU, PALAKKAD,, PIN - 678013 BY ADVS. N.SATHEESH KUMAR(NEMMARA) SANTHOSHKUMAR N.(K/000194/2019) ## **OTHER PRESENT:** SR PP SRI C S HRITHWIK THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 10019 OF 2023 2 ## **O R D E R** Dated this the 31[st] day of January, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (‘Code’, for short), for an order of pre-arrest bail. 2. The petitioner is the 2[nd] accused in Crime No.1412/2023 of the Palakkad Town South Police Station, Palakkad, registered against the accused for allegedly committing the offences punishable under Sections 420, 506, 201, 120-B and 34 of the Indian Penal Code, 1860, (‘IPC’, for short) and Section 5 of the Banning of Unregulated Deposit Schemes Act, 2019 and Section 5 of the Kerala Protection of Interests of Depositors in Financial Establishments Act, 2013. 3. The gist of the prosecution case is that: the petitioner who is the CEO of Gen to Gen Trend Enterprises, Gen Trend Trade and Service Ltd., Evenbeing Nidhi Ltd. had made false promises and cheated the defacto complainant for an amount of Rs.50/- lakh. He did BAIL APPL. NO. 10019 OF 2023 3 not pay the defacto complainant any interest or return the deposited amount. Thus, the petitioner has committed the above offences. 4. Heard; Sri. Renjith B.Marar, the learned counsel appearing for the petitioner, Sri.C.S.Hrithwik, the learned Senior Public Prosecutor and Sri.Satheesh Kumar, the learned counsel appearing for the defacto complainant/intervener. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. The petitioner has already been granted orders of pre-arrest bail by this Court as per Annexures A3 to A5. The petitioner's custodial interrogation is not necessary. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and co-operate with the investigation. Hence, an order of pre-arrest bail may be passed. 6. The learned Public Prosecutor strenuously opposed the application. He contended that the petitioner has criminal antecedents. He is involved in 77 other cases. The BAIL APPL. NO. 10019 OF 2023 4 petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Therefore, the petitioner may not be granted an order of pre-arrest bail. 7. The learned counsel appearing for the defacto complainant/intervener also supported the learned Public Prosecutor and submitted that the application has to be dismissed. 8. 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 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, BAIL APPL. NO. 10019 OF 2023 5 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 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 BAIL APPL. NO. 10019 OF 2023 6 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 BAIL APPL. NO. 10019 OF 2023 7 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 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. On an anxious consideration of the materials placed on record, particularly taking note of the nature, gravity, and seriousness of the economic offence alleged against the petitioner, that the petitioner is involved in 77 other cases of similar nature, that the petitioner's custodial interrogation is necessary and recovery is to be effected, 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 am of the view that this is not a fit case to grant an order of prearrest bail. Consequently, the bail application is dismissed. BAIL APPL. NO. 10019 OF 2023 8 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** Rkc/31.01.24 BAIL APPL. NO. 10019 OF 2023 9 ## **APPENDIX OF BAIL APPL. 10019/2023** PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE FIR IN CRIME NO. 1412/2023 DATED 09.10.2023 OF PALAKKAD TOWN SOUTH POLICE STATION Annexure A2 A TRUE COPY OF THE FINAL ORDER OF THIS HON'BLE COURT DATED 23.06.2020 IN B.A. NO. 2292/2020 Annexure A3 A TRUE COPY OF THE FINAL ORDER OF THIS HON'BLE COURT DATED 29.03.2021 IN B.A. NO. 1079/2021 Annexure A4 A TRUE COPY OF THE FINAL ORDER OF THIS HON'BLE COURT DATED 24.03.2022 IN B.A. NO. 2000/2022 Annexure A5 A TRUE COPY OF THE FINAL ORDER OF THIS HON'BLE COURT DATED 24.03.2022 IN B.A. NO. 2011/2022