Savitha S.R v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 BAIL APPL. NO. 3212 OF 2024** **IN CRIME NO.452/2024 OF THE KODUNGALLUR POLICE STATION PETITIONER/ACCUSED:** **SAVITHA S.R AGED 34 YEARS D/O SEETHA, NEELATH MATTAM, KODUNGALLUR, LOKAMALLESWARAM, THRISSUR, PIN - 680664 BY ADV K.K.RAJEEV** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF**| ||**KERALA, PIN - 682031**| |**2**|**STATION HOUSE OFFICER**| ||**KODUNGALLUR POLICE STATION, THRISSUR, PIN -**| ||**680664**| |**3**|**SREEDEVI ( SOUGHT TO BE IMPLEADED )**| ||**NEELATH MATTAM, LOKAMALESWARAM, KODUNGALLUR,**| ||**THRISSUR ( SOUGHT TO BE IMPLEADED )**| ||**BY ADVS.**| ||**SRI.C.A.CHACKO**| ||**C.M.CHARISMA**| ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.3212 of 2024 -:2:- Dated this the 10[th] day of June,2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.452/2024 of the Kodungalloor Police Station, Thrissur, registered against the accused for allegedly committing the offences punishable under Sections 451 and 380 of the Indian Penal Code. 3. The gist of the prosecution case is that; the accused trespassed into the house of the de facto complainant (mother in law of the accused) and committed theft of her bank pass book, ID card and ATM cards, and caused a loss of Rs.20 lakh to the de B.A.No.3212 of 2024 -:3:- facto complainant. Thus, the accused has committed the above offences. 4. Heard; Sri. Rajeev K.K., the learned counsel appearing for the petitioner, Smt.Seetha S, the learned Senior Public Prosecutor and Sri.C.A. Chacko, the learned counsel appearing for the de facto complainant. 5. The learned counsel appearing for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against her. There are matrimonial disputes pending between the petitioner, her husband and the de facto complainant. By Annexure A-1 order, the jurisdictional Magistrate has passed a residence order in the petitioner's favour, under the provisions of the Protection of Women from Domestic Violence Act, permitting her to reside in the shared household, wherein the offence is alleged to be committed. It is only as a counter blast to the B.A.No.3212 of 2024 -:4:- matrimonial proceedings pending between the parties, the de facto complainant has instituted Annexure A-2 FIR. The de facto complainant's sole intention is to browbeat and harass the petitioner. The petitioner’s custodial is not and no interrogation necessary recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is granted an order of pre-arrest bail, it may hamper the investigation. Hence, the application may be dismissed. 7. The learned counsel for the de facto complainant/intervenor has filed a written objection, inter alia, contending that the petitioner is not residing in the house of the de facto complainant. The very fact that she has shown her address at Panangad in B.A.No.3212 of 2024 -:5:- Annexure R3(a) transfer proceedings, which was filed to transfer the proceedings from the Family Court, Irinjalakuda to the Family Court, Ernakulam, establishes that the petitioner is not residing in the shared household. The petitioner has consciously taken away the belongings of the de facto complainant and caused her a loss of Rs.20 lakh. If the petitioner is granted an order of per-arrest bail, it will hamper the investigation. Hence, the application may be dismissed. 8. On an evaluation of the materials on record, it can be seen that there are matrimonial litigations between the parties pending before the Family Court, Irinjalakuda. Pursuant to Annexure R3(a) order, the proceedings have been transferred from the Family Court, Irinjalakuda to the Family Court, Ernakulam. In addition to the same, Annexure A1 residence order is passed by the Judicial First Class Magistrate, B.A.No.3212 of 2024 -:6:- Kodungalloor, in favour of the petitioner permitting her to reside in the residence of the de facto complainant. It is from the residence that the de facto complainant alleges that the petitioner has committed theft of her property. 9. The Hon’ble Supreme Court in **Bhadresh Bipinbhai Sheth vs State of Gujarat and another** [2015 KHC 4579] has categorically laid down the principles for the purpose of granting orders of prearrest bail in cases involving in family disputes. It is apposite to extract the relevant portion of the judgment, which reads thus: “23. The principles which can be culled out, for the purposes of the instant case, can be stated as under: (i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The Court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or B.A.No.3212 of 2024 -:7:- frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the Investigating Officer is established then action be taken against the investigating officer in accordance with law. (ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the Court. (iii) It is imperative for the Courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the Court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre - conviction stage or post - conviction stage. (iv) There is no justification for reading into S.438 CrPC the limitations mentioned in S.437 CrPC. The plentitude of S.438 must be given its full play. There is no B.A.No.3212 of 2024 -:8:- requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by S.438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the Court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail. (v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the Court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the Court may either reject the anticipatory bail application or confirm the initial order of granting bail. The Court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same Court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the Court is misused. The anticipatory bail granted by the Court should ordinarily be continued till the trial of the case. (vi) It is a settled legal position that the Court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time. B.A.No.3212 of 2024 -:9:- (vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the Trial Court, then it would be unreasonable to compel the accused to surrender before the Trial Court and again apply for regular bail. (viii) 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 S.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. (ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with Legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. (x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail: (a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (b) 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 B.A.No.3212 of 2024 -:10:- cognizable offence; (c) The possibility of the applicant to flee from justice; (d) The possibility of the accused's likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (g) 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 S.34 and S.149 of the Penal Code, 1860 the Court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern; (h) 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 free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (j) 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 B.A.No.3212 of 2024 -:11:- accused is entitled to an order of bail”. 10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, and taking note of the law laid down by the Honourable Supreme Court in the aforecited decision and considering the fact that there are matrimonial disputes between the parties, and there is a residence order passed in favour of the petitioner, I am of the view that the petitioner’s custodial interrogation is not necessary, particularly on prima facie perceiving frivolity in the litigation instituted against the petitioner. Nonetheless, I do not want to express any opinion on the merits of the complaint, because that is a matter to be investigated and decided at the time of trial. But, I am satisfied that the petitioner has made out exceptional grounds to invoke the discretionary jurisdiction of this Court B.A.No.3212 of 2024 -:12:- under Section 438 of the Code of Criminal Procedure. Hence, I am inclined to allow the application, but subject to the condition that the petitioner co-operates with the Investigating Officer. In the result, the application is allowed subject to the following conditions: - (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on her executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioner 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 her from disclosing such facts to B.A.No.3212 of 2024 -:13:- the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioner shall surrender her passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If she has no passport, she shall file an affidavit to the effect before the said court within the said period; - (vi)The petitioner shall not get involved in 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 petitioner B.A.No.3212 of 2024 -:14:- even while the petitioner is 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 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/10.6.2024