Sarath v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3871 OF 2024 ``` ``` CRIME NO.463/2024 OF Nedumangad Police Station, ``` ## **`Thiruvananthapuram`** ## **`PETITIONER :`** ``` SARATH, AGED 34 YEARS S/O SREEKANDAN NAIR, VILAYIL VEEDU, KADUVAKUZHY KONCHIRA.P.O , VEMBAYAM, THIRUVANANTHAPURAM, PIN - 695615 ``` ``` BY ADV M.R.SARIN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SENIOR PUBLIC PROSECUTOR SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.3871 of 2024 -:2:- Dated this the 3[rd] day of June, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.463/2024 of the Nedumangad Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offences punishable under Sections 406 and 420 r/w Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 30.03.2024, the accused, in furtherance of their common intention, went to the house of the defacto complainant and agreed to purchase ten buffaloes for Rs.64,000/- each. They promised to pay the amount at B.A.No.3871 of 2024 -:3:- Nedumangad Panavoor. When the accused reached the place with the buffaloes, the first accused gave an amount of Rs.80,000/- to the father of the defacto complainant and assured him to pay the balance amount on or before 01.04.2024. However, the accused sold the buffoloes and did not pay the balance amount to the defacto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri.M.R. Sarin, the learned counsel appearing for the petitioner and Smt. Seetha.S, the learned Public Prosecutor. 5. The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure A1 FIR would substantiate that there are no incriminating materials to show the petitioner’s involvement in the case. The petitioner was B.A.No.3871 of 2024 ## -:4:- only the driver, who acted on the instructions of the third accused. The third accused purchased the buffaloes from the defacto complainant and did not pay the money. Therefore, the petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the accused, in furtherance of their common intention to cheat the defacto complainant, had gone to his house and taken away the buffaloes by assuring to pay the money. However, the accused sold the buffaloes to third parties and did not pay the money to the defacto complainant. There was mens rea on the part of the accused right from the inception of the transaction itself to cheat the defacto complainant. Hence, the B.A.No.3871 of 2024 -:5:- application is only to be dismissed. 7. The prosecution allegation against the petitioner is that, he and the other accused had gone to the house of the defacto complainant and purchased the buffaloes of the defacto complainant for consideration. Even though they took the buffaloes from the house of the defacto complainant, they did not pay the consideration. Thus, they cheated the defacto complainant. The trump card of the petitioner is that he was only the driver of the vehicle which transported the buffaloes. 8. On an evaluation of the materials placed on record, I find that there are incriminating materials to show the petitioner's complicity in the crime. However, this is a matter to be investigated and decided at the time of trial. 9. Recently, in **Srikant Upadhyay v. State of** B.A.No.3871 of 2024 -:6:- **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) SCC 679). xxx xxx 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 ## B.A.No.3871 of 2024 ## -:7:- 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 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 proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has -:8:- ## B.A.No.3871 of 2024 to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner and that the petitioner’s custodial interrogation is necessary, I am convinced that the petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Section 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 ## B.A.No.3871 of 2024 ## -:9:- 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, 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** mtk/03.06.24