SHAJAHAN v. STATE OF KERALA

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 4101 OF 2024 ``` ``` CRIME NO.694/2023 OF IDUKKI POLICE STATION, IDUKKI ``` ## `PETITIONER:` ``` SHAJAHAN, AGED 34 YEARS S/O SAIDHU, 7/15A1, PALLIPADI, GUDALUR, NILGIRIS, NANDHATTI, TAMIL NADU, PIN – 643212 ``` ``` BY ADV R.LAIJU ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 2STATION HOUSE OFFICER, IDUKKI POLICE STATION, IDUKKI DISTRICT, PIN – 685602 ``` ## `OTHER PRESENT:` ## `SR PP SMT SEETHA S` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.4101 of 2024 ## **C.S.DIAS,J** **======================** **Bail Application No.4101 of 2024** **-----------------------------------** **Dated this the 12[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 first accused in Crime No.694/2023 of the Idukki Police Station, registered against the accused, for allegedly committing the offences punishable under Section 420 read with Section 34 of the Indian Penal Code. 3 Bail Application No.4101 of 2024 3. The crux of the prosecution case is that: the accused, in furtherance of their common intention, induced the de facto complainant to pay an amount of Rs.5,00,000/- on the assurance that they would arrange an employment visa for the de facto complainant in New Zealand. However, after receipt of the money, the accused did not arrange the visa or return the amount to the de facto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri. R.Laiju, the learned counsel appearing for the petitioner and Smt. Seetha.S., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure A1 FIR would substantiate that the transaction is civil in nature. 4 Bail Application No.4101 of 2024 The second accused has already been enlarged on bail. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that the amount of Rs.5,00,000/- was credited to the bank account of the petitioner. There are incriminating materials to substantiate the petitioner’s involvement in the crime. The second accused was arrested and was enlarged on bail by the Court of Session, Thodupuzha. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 5 Bail Application No.4101 of 2024 7. The prosecution allegation against the petitioner is that he received an amount of Rs.5,00,000/- from the de facto complainant on the assurance that he would arrange an employment visa for the de facto complainant in New Zealand. However, he did not arrange the visa or return the money. 8. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137], the Hon’ble Supreme Court, after referring to the earlier precedents on the point, has succinctly laid down the law 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). 6 Bail Application No.4101 of 2024 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 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 xxx xxx” 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 7 Bail Application No.4101 of 2024 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. 10. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, particularly on considering the nature, seriousness and gravity of the accusations levelled against the petitioner, the prima facie materials which substantiate the petitioner’s involvement in the crime, that the petitioner’s custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the petitioner has not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Hence, I am not inclined 8 Bail Application No.4101 of 2024 to allow the application. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 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** DST/12.06.24 //True copy// P.A. To Judge