SHAJAHAN KHASSIM v. STATE OF KERALA; GEETHARANI v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 BAIL APPL. NO. 10237 OF 2022 ``` ``` CRIME NO.807/2022 OF Anchal Police Station, Kollam ``` ## **`PETITIONER/S:`** ``` SHAJAHAN KHASSIM, AGED 46 YEARS S/O M.M. KHASSIM, THEKKUM KATTIL VEEDU, CHAVARAKKUNNU, KUMMIL P.O, KADAKKAL, KOLLAM, PIN - 691536 BY ADV M.R.SASITH ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV NEEMA T.V, PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2024 ALONG WITH BA 11299/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application Nos 10237/2022 and 11299/2023 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 BAIL APPL. NO. 11299 OF 2023 ``` ``` CRIME NO.807/2022 OF Anchal Police Station, Kollam ``` ## **`PETITIONER/S:`** ``` GEETHARANI AGED 71 YEARS W/O LATE RAJAGOPAL, ANIZHAM, MALAYAMKEEZHU, THIRUVANANTHAPURAM, PIN - 695571 BY ADVS. VISHNU BHUVANENDRAN B.ANUSREE MIRAL K.JOY ABHILASH C.V. VARUN JACOB ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` SRI.C.S HRITHWIK, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2024 ALONG WITH BA 10237/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Bail Application Nos 10237/2022 and 11299/2023 ## **C.S.DIAS,J** ## **======================** ## **Bail Application Nos 10237/2022 and 11299/2023 -----------------------------------** ## **Dated this the 9[th] day of February, 2024** ## **COMMON O R D E R** The applications are filed under Section 438 of the Code of Criminal Procedure, 1973 _(‘Code’, for short),_ for orders of pre-arrest bail. As these applications arise out of the same crime, they were consolidated, jointly heard and are being disposed of by this common order. 2. BA No.11299/2023 is filed by the third accused and BA No.10237/2022 is filed by the first accused in crime No.807/2022 of the Anchal Police Station, Kollam, registered against the accused (three in number), for allegedly committing the offences punishable under Sections 419, 420, 4 Bail Application Nos 10237/2022 and 11299/2023 468 read with Sec.34 of the Indian Penal Code, 1860, _(‘IPC’, for short)._ 3. The prosecution case, in brief, is that: on 16.1.2020, the accused in furtherance of their common intention, received an amount of Rs.2/- Lakh from the defacto complainant assuring an employment for his son in the Indian Army. Subsequently, they again received an amount of Rs.4/- Lakh assuring a job for his son in the Indian Railways. However, the accused failed to secure the job or return the above said amount. Thus, the accused have committed the above offences. 4. Heard; Sri. Vishnu Bhuvanendran and Sri.Sasith M.R, the learned counsel appearing for the petitioners and Smt.Neema T.V and Sri.C.S Hrithwik, the learned Senior Public Prosecutors appearing for the respondents. 5 Bail Application Nos 10237/2022 and 11299/2023 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 dispute between the parties is purely civil in nature. The crime is of the year 2022. The custodial interrogation of the petitioners is unnecessary and no recovery is to be effected. Therefore, orders of pre-arrest bail may be granted. 6. The learned Public Prosecutors opposed the application. They contended that the first accused is a person with criminal antecedents. There are five other cases of similar nature registered against him. The petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are let off on bail, it would hamper with the investigation. Hence, the applications may be dismissed. 6 Bail Application Nos 10237/2022 and 11299/2023 ## 7. 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; (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 7 Bail Application Nos 10237/2022 and 11299/2023 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 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. ## 8. 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 8 Bail Application Nos 10237/2022 and 11299/2023 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. 9. On a consideration of the facts, the materials placed on record and the rival submission made across the Bar, particularly taking note of the nature, gravity and seriousness of the offences alleged against the petitioners, the fact that the first accused has criminal antecedents, that the custodial interrogation of the petitioners is necessary and recovery is to be effected, I am of the definite view that the petitioners have not made out any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that these are not fit cases to grant orders of 9 Bail Application Nos 10237/2022 and 11299/2023 pre-arrest bail. Consequently, the bail applications are dismissed. 10. 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 applications for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail applications on their 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. **==> picture [28 x 13] intentionally omitted <==** Sks/9.2.2024 **C.S.DIAS,JUDGE**