Sathyan and Sanal K.S v. State of Kerala and Subhadra

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 2 OF 2024`** ``` CRIME NO.1132/2023 OF OLLUR POLICE STATION, THRISSUR AGAINST THE ORDER/JUDGMENT CRMC 1668/2023 OF DISTRICT COURT & SESSIONS COURT,THRISSUR ``` ## **`PETITIONERS/ACCUSED 1 AND 2:`** ``` 1SATHYAN, AGED 68 YEARS S/O. KUNJAYYAPAN, KODAKKATIL HOUSE, CHOONDAL VILLAGE, THALAPILLY TALUK, KECHERY P.O., THRISSUR DISTRICT, PIN - 680501 ``` ``` 2SANAL K.S, AGED 38 YEARS S/O.SATHYAN, KODAKKATIL HOUSE, CHOONDAL VILLAGE THALAPILLY TALUK, KECHERY P.O., THRISSUR DISTRICT, PIN - 680501 ``` ``` BY ADV K.NANDINI ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031` ``` 2SUBHADRA, AGED 54 YEARS W/O SUBRAMANYAN, MUDHUKATTIL HOUSE,PARANNUR, CHOONDAL VILLAGE, THALAPPILLY TALUK, THRISSUR- 680502.( SOUGHT TO BE IMPLEADED) ``` ``` 2 ``` ## **B.A. NO.2 of 2024** ## **`OTHER PRESENT:`** ``` SR PUBLIC PROSECUTOR SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. NO.2 of 2024** ``` 3 ``` ## **Dated this the 23[rd] day of February, 2024** ## **O R D E R** 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 petitioners are the accused 1 and 2 in Crime No.1132/2023 of the Ollur Police Station, Thrissur registered against the accused (five in number) for allegedly committing the offences punishable under Sections 406 and 420 of the Indian Penal Code. 3. The crux of the prosecution case is that; the accused 1 and 2 in furtherance of their common intention, had approached the de facto complainant in the year, 2016 and assured that they would arrange a purchase loan for Rs.25,00,000/- subject to the condition that she ``` 4 ``` ## **B.A. NO.2 of 2024** creates an equitable mortgage in favour of Kuttanellur Service Co-operative Bank. The de facto complainant on believing the promise made by the accused 1 and 2 handed over the title deeds of her property. Consequently, the accused created an equitable mortgage in favour of the Bank and secured the loan for Rs.25,00,000/-. However, it later turned out to be that, the accused had actually availed a loan for Rs.1,25,00,000/- by manipulating the loan application and other documents given by the de facto complainant. Thus, the accused have committed the above offences. 4. Heard Smt.K.Nandini, learned counsel appearing for the petitioners and Smt. Seetha S., the learned Senior Public Prosecutor. 5. Learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. In fact, the petitioners have been made scapegoats in the incident. Several **B.A. NO.2 of 2024** ``` 5 ``` persons have been cheated by the office bearers of the Kuttanellur Service Co-operative Bank. The petitioners have filed Annexure A1 suit before the Civil Court for a decree of declaration. The petitioners have also lodged a complaint with the police against the action of the bank officials. They also complained to the Enforcement Directorate for the offences committed by the Bank. At any rate, the petitioners’ custodial interrogation is not necessary and no recovery is to be effected. The petitioners are willing to abide by any stringent condition that may be imposed by this Court and co-operate with the investigation. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She contended that the accused had manipulated the documents and have taken the de facto complainant for a ride. After paying the de facto complainant Rs.25,00,000/- the accused misappropriated **B.A. NO.2 of 2024** ``` 6 ``` the balance amount of Rs.1/- crore. The investigation is only at its preliminary stage, that the custodial interrogation of the accused is necessary and recovery is to be effected. 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 gravamen of the prosecution allegation is that, the accused 1 and 2 in furtherance of their common intention, after promising the de facto complainant that they would secure a loan for her for Rs.25,00,000/-, without her consent created an equitable mortgage with the Bank and received an amount of Rs.1,25,00,000/-. Out of the said amount, they only paid Rs.25,00,000/- to the de facto complainant and siphoned off the balance amount. The petitioners had filed an application for a similar relief as Crl.M.C. No.1668/2023 before the Court of Session, Thrissur. By Annexure A4 order, the learned Sessions Judge dismissed the application, principally on ``` 7 ``` ## **B.A. NO.2 of 2024** the ground that the petitioners’ custodial interrogation is necessary and the investigation is only at its preliminary stage. 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 accused must be properly comprehended before arrest is made; **B.A. NO.2 of 2024** ``` 8 ``` (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 **B.A. NO.2 of 2024** ``` 9 ``` 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. 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. **B.A. NO.2 of 2024** ``` 10 ``` ## 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 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.” On an anxious consideration of the facts, the rival submissions made across the Bar, the materials placed ``` 11 ``` ## **B.A. NO.2 of 2024** on record, and on comprehending the nature, gravity and seriousness of the economic offences alleged against the petitioners, that the petitioners’ custodial interrogation is necessary and recovery is to be effected, I am convinced that the petitioners have not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.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 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 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 ``` 12 ``` ## **B.A. NO.2 of 2024** 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** ``` rmm/23/2/2024 ```