Saraswathy M.R and Vijayan v. State of Kerala and Samuel K.G

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 BAIL APPL. NO. 573 OF 2024 ``` ``` CRIME NO.11/2024 OF KEEZHVAIPUR POLICE STATION, ``` ## **`PATHANAMTHITTA`** ## **`PETITIONERS/ACCUSED 1 AND 2:`** ``` 1 SARASWATHY M.R AGED 43 YEARS D/O KUTTI KUNJOONJU, KOLATH VADAKKETHIL, KANNANTHANAM, PATHANAMTHITTA,, PIN - 689581 ``` ``` 2 VIJAYAN, AGED 65 YEARS S/O SANKARAN, MOOLEKKUNNEL PUTHUSSERRY P.O., PATHANAMTHITTA,, PIN - 689602 ``` ``` BY ADV M.R.SASITH ``` ## **`RESPONDENTS/DEFACTO COMPLAINANT:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2 SAMUEL .K.G S/O JOHN, KADUVETTIL HOUSE, NIRANAM P.O, THIRUVALLA- 689621 ( IMPLEADED AS THE ADDITINAL RESPONDENT AS PER ORDER DATED 02.02.2024. ) ``` ``` BY ADVS. T.P.PRADEEP ``` B.A.No.573 of 2024 -:2:- ``` P.K.SATHEES KUMAR R.K.PRASANTH MINIKUMARY M.V. JIJO JOSEPH ``` ``` BY SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.573 of 2024 -:3:- ## Dated this the 2[nd] day of February, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused 1 and 2 in Crime No.11/2024 of the Keezhvaipur Police Station, Pathanamthitta, registered against them for allegedly committing the offences punishable under Sections 420, 323 and 506 of the Indian Penal Code, 1860, and Section 66 (E) of the Information Technology Act. 3. The gist of the prosecution case is that: with an intention to deceive and defraud the de facto complainant for profit, the second accused, who is a marriage broker by profession, introduced the first accused to the de facto complainant, who is a widower, ## B.A.No.573 of 2024 ## -:4:- and proposed to get married. Subsequently, the first accused started communicating with the de facto complainant and showed her interest in getting married. Thereafter, the accused made the de facto complainant to transfer Rs.21,00,000/- from his bank account to the account of the first accused. The de facto complainant also purchased a scooter for the first accused and bought five sovereigns gold ornaments. Thereafter, on 28.11.2022, the accused called the de facto complainant to the residence of the first accused, stripped him naked, took his nude photographs, and circulated the same. Thus, the accused have committed the above offences. 4. Heard; Sri.Sasith. M.R, the learned counsel appearing for the petitioners, Smt. Seetha. S., the learned Senior Public Prosecutor appearing for the respondent and Sri.T.P. Pradeep, the learned counsel appearing for the de facto complainant/intevenor. ## B.A.No.573 of 2024 -:5:- 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The first petitioner is a lady, and the second petitioner is only a marriage broker. It is on mutual consent that the first petitioner and the de facto complainant decided to get married. The allegations in the complaint filed before the jurisdictional magistrate will substantiate that the first petitioner and the de facto complainant were on cordial terms. Subsequently, the de facto complainant has made a false complaint against the petitioners. The petitioners have no complicity in the crime. At any rate, the petitioners’ custodial interrogation is not necessary. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that the accused have cheated the de facto complainant and ## B.A.No.573 of 2024 ## -:6:- have siphoned off Rs.21,00,000/-. They also made the de-facto complainant to purchase gold ornaments and a scooter. Thereafter, the petitioners took nude the photographs of the de facto complainant and circulated the same. The petitioners’ custodial interrogation is and is to be The necessary recovery effected. investigation in the case is at a nascent stage. If the petitioners’ are granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. The learned counsel for the de facto complainant / intervenor also opposed the application. He submitted that it is a clear case of the de facto complainant being laid into a honey trap. The petitioners have criminal antecedents, as they have committed similar offences. The de facto complainant has been cheated by the petitioners, who have grabbed Rs.21,00,000/-, gold ornaments, and a scooter. Hence, ## B.A.No.573 of 2024 ## -:7:- the petitioners may not be granted an order of prearrest bail. 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, 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 -:8:- ## B.A.No.573 of 2024 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 ## B.A.No.573 of 2024 ## -:9:- 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. ## 9. Likewise, in **Gurbaksh Singh Sibbia v. State** ## **of Punjab,** (1980) 2 SCC 565 ] the Hon’ble Supreme Court has held as follows: **21** . The High Court says in its fourth proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a “special case” for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a ## B.A.No.573 of 2024 ## -:10:- dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not “unguided or uncanalised”, the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special case” for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a “special case”. We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail. 10. After bestowing my anxious consideration of the materials placed on record, particularly after going through the nature, gravity and seriousness of the allegations made in the complaint as well in Annexure A1 FIR, taking note of the fact that an amount of B.A.No.573 of 2024 ## -:11:- Rs.21,00,000/- was transferred from the bank account of the defacto complainant to the bank account of the first petitioner, that the petitioners had taken nude photographs of the defacto complainant and circulated the same, that the petitioners have criminal antecedents, that the petitioners’ custodial interrogation is necessary and that the 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 hold that this is not a fit case to grant an order of prearrest bail. Consequently, the bail application is dismissed. 11. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners B.A.No.573 of 2024 -:12:- move 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 petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. Sd/- **C.S.DIAS,JUDGE** mtk/02.02.24