Sandeep K.B., Jini M.P. and Rajitha v.State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946 ``` ``` BAIL APPL. NO. 4317 OF 2024 ``` ``` CRIME NO.144/2024 OF ALOOR POLICE STATION, Thrissur ``` ## **`PETITIONERS/ACCUSED:`** - **`1 SANDEEP K.B, AGED 41 YEARS S/O BHASKARAN,KAITHAKKATT HOUSE, KOOLIMUTTAM PO,TRISSUR DISTRICT, PIN - 680691`** - **`2 JINI.M.P, AGED 36 YEARS W/O RAGHESH,VILAYIL HOUSE,PARIYARAM ,NEAR ANNAPOORANESWARY TEMPLE, PARIYARAM,,TRISSUR DISTRICT, PIN - 680721`** - **`3 RAJITHA , AGED 42 YEARS W/O SANDEEP ,KAITHAKKATT HOUSE, KOOLIMUTTAM PO,TRISSUR DISTRICT, PIN - 680691 BY ADVS. M.BAIJU NOEL T.S.LIKHITHA JITHIN T.P.`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER, ALOOR POLICE STATION,THRISSUR DISTRICT, PIN - 680683`** ## **`OTHER PRESENT:`** ## **`SR PP SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.4317 of 2024 _-:2:-_ Dated this the 25[th ] 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 petitioners are the accused 1,3 and 4 in Crime No.144/2024 of the Aloor Police Station, Thrissur, which is registered against the accused (4 in number) for allegedly committing the offences punishable under Sections 406, 409, 420 and 506 r/w Section 34 of the Indian Penal Code, 1860 (IPC). 3. The prosecution case, in brief, is that: the accused, in furtherance of their common intention to cheat the de facto complainant, who had pawned 136 grams of gold ornaments with the establishment of the first accused, without her knowledge or consent, the first accused between the period from 23.5.2023 to B.A.No.4317 of 2024 _-:3:-_ 30.05.2023 started an account in the name of the de facto complainant in the Catholic Syrian Bank, Kuzhikkattussery Branch (in short, ‘Bank’) and pawned her 136 grams of gold ornaments in the said Bank. When the de facto complainant went to redeem the pawned gold ornaments from the first accused, she learnt about the said fact. Then, she approached the second accused (the former Manager of the Bank) and the third accused (the present Manger of the Bank), who made the de facto complainant to sign on the withdrawal forms, but gave back only 30 grams of gold and refused to return 106 grams of gold ornaments worth Rs.6,30,000/-. Thus, the accused have cheated the de facto complainant. The fourth accused telephoned and threatened the de facto complainant that she would file a false case against her. 4. Heard; Sri. M. Baiju Noel, the learned counsel appearing for the petitioner and Smt. Neema T.V., the B.A.No.4317 of 2024 _-:4:-_ learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of the First Information Report would clearly reveal that none of the offences stand attracted against the petitioners. The transaction between the petitioners and the de facto complainant is purely civil in nature. The first petitioner is willing to return the entire gold ornaments back to the de facto complainant, provided she pays the entire loan amount. It is without paying the mortgage amount the de facto complainant wants the gold ornaments. In any given case, the petitioners 2 and 3/ accused 3 and 4 have no complicity in the crime. The third accused has only discharged his function as the present Manager of the Bank and does not even know the de facto complainant. Similarly, the fourth accused only complained against the de facto B.A.No.4317 of 2024 _-:5:-_ complainant, since she was persistently pestering the fourth accused demanding for return of gold ornaments. The petitioners’ 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. The Investigating Officer has filed a bail objection report, inter alia, contending that there are incriminating materials to substantiate the petitioners involvement in the crime. The first petitioner/first accused had consciously, without the consent and knowledge of the de facto complainant, pawned her gold ornaments with the bank. The accused 2 and 3 received the gold ornaments from the first accused knowing that the gold belonged to the de facto complainant. Therefore, the accused 1 to 3 have cheated the de facto complainant and committed breach of trust. Likewise, the fourth accused, who is ## B.A.No.4317 of 2024 _-:6:-_ the wife of the first accused, has intimidated and threatened the de facto complainant of the dire consequences if she pursued the complaint. The petitioners’ custodial interrogation is necessary and recovery is to be effected for the proper and full investigation of the case. Hence, the application may be dismissed. 7. The prosecution case is that, the first accused had re-pledged the gold ornaments of the de facto complainant with the bank where the second accused was earlier employed and the third accused is presently employed. The allegation against the fourth accused is that she threatened the de facto complainant not to pursue the complaint. 8. On a meticulous scrutiny of the materials placed on record, it is prima facie seen that the de-facto complainant had only a privity of contract with the first petitioner/first accused. It was the first accused who B.A.No.4317 of 2024 _-:7:-_ allegedly re-pledged the gold ornaments of the de facto complainant with the bank. Prima facie, it cannot be said that the petitioners 2 and 3 had any complicity in the crime with regard to the re-pledging of the gold ornaments. Therefore, it cannot be said that the custodial interrogation of the petitioners 2 and 3 is necessary for the proper investigation of the crime. 9. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: “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) B.A.No.4317 of 2024 _-:8:-_ 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 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 B.A.No.4317 of 2024 _-:9:-_ 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 overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that the de-facto complainant had only entrusted the gold ornaments to the first accused, who has allegedly re-pledged the gold ornaments to the bank and that his custodial interrogation is necessary and the gold ornaments have to be recovered, I am not satisfied that the first petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. On the contrary, since there is no specific overt act alleged against the petitioners 2 and 3/ accused 3 and 4, so as to prima B.A.No.4317 of 2024 _-:10:-_ facie attract the offences alleged against them, though that is a matter to be investigated and decided at the time of trial, I am convinced that the petitioners 2 and 3/accused 3 and 4 have made out satisfactory grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. In the result, (a) The application filed by the first petitioner/ first accused is dismissed. (b) The application filed by the petitioners 2 and 3/ accused 3 and 4 is allowed, subject to the following conditions: (i) The petitioners 2 and 3 are directed to surrender before the Investigating Officer within 10 days from today. (ii) In the event of the arrest of the petitioners 2 and 3, the Investigating Officer shall release the petitioners on bail on them executing a bond for B.A.No.4317 of 2024 _-:11:-_ Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties for the like amount each; (iii) The petitioners 2 and 3 shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. (iv) The petitioners 2 and 3 shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (v) The petitioners 2 and 3 shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of his release on bail. If they have no passport, they shall file an affidavit to the effect before the said court within the said period; (vi)The petitioners 2 and 3 shall not get involved in B.A.No.4317 of 2024 _-:12:-_ any other offence while on bail; (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners 2 and 3 even while the petitioners 2 and 3 are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) And another** [2020 (1) KHC 663]. (x) The observations made in this order are only B.A.No.4317 of 2024 _-:13:-_ for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. SD/- **C.S.DIAS,JUDGE** rmm/25/7/2024