Saliha v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 5846 OF 2023 ``` ``` CRIME NO.457/2023 OF OLLUR POLICE STATION, THRISSUR ``` ## _`PETITIONER:`_ ``` SALIHA, AGED 35 YEARS D/O.SHAMSUDHEEN,KURIYAPULLY HOUSE, KOVILAKATHKUNNU, PUTHENCHIRA SOUTH, THRISSUR-680682 BY ADVS. K.R.VINOD M.S.LETHA NABIL KHADER CHITHRA C.EDADAN MOHAMMED RAZALI K.A ``` ## _`RESPONDENTS:`_ ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682031 *ADDL.2SURESH.K.N , S/O NARAYANAN, KARUKAYIL HOUSE,AVINISSERY, VALLISSERY, THRISSUR (*IS IMPLEADED AS ADDL R2 AS PER ORDER DTD 7/9/2023 IN CRL MA 1/2023) BY ADV RAJESH CHAKYAT SMT NEEMA T V, SR.PP THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 5846 OF 2023 -2- ``` ## _`ORDER`_ 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 second accused in Crime No.457/2023 of Ollur Police Station, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 406, 420 and r/w Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: the accused 2 to 4 induced the de facto complainant to deposit an amount of Rs.10,00,000/- with the first accused firm on or before 05.02.2022 and another amount of Rs.10,00,000/- on 17.02.2022 in the bank account of the first accused firm and assured the de facto complainant’s profits in the firm. However, the accused failed to return the principal or pay any profit to the de facto complainant. Thus, the accused had committed the ``` BAIL APPL. NO. 5846 OF 2023 -3- ``` above offences. 4. Heard; Sri.K.R.Vinod, the learned Counsel appearing for the petitioner and Sri.Neema T.V., the learned Public Prosecutor and Sri.Rajesh Chakyat, the learned counsel appearing for the de facto complainant/intervenor. 5. The learned Counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. The allegations in Annexure-I F.I.R would substantiate that the transactions between the petitioner and the de facto complainant are purely civil in nature. He drew the attention of this Court to Annexure 2 agreement to substantiate that the amount was deposited in the first accused firm pursuant to the terms and conditions of the said agreement. Moreover, the lock in period was one year. Hence, the de facto complainant was precluded from withdrawing the money. Similarly, as per Clause 2 the parties are to ``` BAIL APPL. NO. 5846 OF 2023 ``` **==> picture [23 x 8] intentionally omitted <==** resort to arbitration in case of any dispute. Therefore, he prayed that the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She contended that the petitioner is a person with criminal antecedents. There are ten other cases registered against her for committing offences of a similar nature. She submitted that the petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of prearrest bail, it would hamper with the investigation. Learned counsel appearing for the second respondent also opposed the application. Second respondent has filed a bail objection report, inter alia, contending that the accused have cheated the de facto complainant by siphoning off his hard earned money. He contended that the petitioner is a person with criminal antecedence, if she is granted an order of pre-arrest bail, it would ``` BAIL APPL. NO. 5846 OF 2023 -5- ``` hamper the investigation. Hence, the application may be dismissed. 7. The case of the prosecution allegation is that the accused 2 to 4 had lured the de facto complainant to deposit money in the first accused firm assuring him of profits from the investment. However, the accused failed to give any profit on the investment or return the capital. 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 ``` BAIL APPL. NO. 5846 OF 2023 -6- ``` 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 ``` BAIL APPL. NO. 5846 OF 2023 -7- ``` 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 ``` BAIL APPL. NO. 5846 OF 2023 -8- ``` 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 selfimposed 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 ``` BAIL APPL. NO. 5846 OF 2023 -9- ``` 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 extraordinary power and the same has to be exercised sparingly. The privilege of the prearrest 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 ``` BAIL APPL. NO. 5846 OF 2023 -10- ``` to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 11. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, the law referred to the aforecited decisions and especially comprehending the nature, seriousness and gravity of the economic offences alleged against the petitioner, that the petitioner is involved in ten other crimes of similar nature, that the petitioner’s custodial interrogation is necessary, and that the recovery is to be effected, I am of the definite view 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 am not inclined to allow the bail application. 12. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, she shall be interrogated and, ``` BAIL APPL. NO. 5846 OF 2023 ``` **==> picture [29 x 8] intentionally omitted <==** 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 ``` ``` vv ``` ``` BAIL APPL. NO. 5846 OF 2023 ``` ``` -12- ``` ## _`APPENDIX OF BAIL APPL. 5846/2023`_ ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1THE COPY OF THE FIR NO.457/2023 OF OLLUR POLICE STATION, THRISSUR ANNEXURE A2THE COPY OF THE PARTNERSHIP AGREEMENT DATED 05.02.2022 EXECUTED BETWEEN PETITIONERANDTHEDEFACTO COMPLAINANT ``` ``` RESPONDENT ANNEXURES ``` ``` EXHIBIT R2 AA TRUE COPY OF THE FIRST INFORMATION STATEMENT GIVEN BY THIS RESPONDENT IN CRIME NO 457/2023 OF OLLUR POLICE STATION ```