Shaji and Pushpalatha v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 BAIL APPL. NO. 10283 OF 2023 ``` ``` CRIME NO.796/2023 OF POOCHAKKAL POLICE STATION, ALAPPUZHA ``` ## **`PETITIONERS:`** ``` 1 SHAJI, AGED 49 YEARS S/O VELAYUDHAN, KOLLAPARAMBIL VELI, PANAVALLY P.O., CHERTHALA, ALAPPUZHA, PIN - 688526 ``` ``` 2 PUSHPALATHA, AGED 54 YEARS W/O SHAJI, KOLLAPARAMBIL VELI, PANAVALLY P.O., CHERTHALA, ALAPPUZHA, PIN - 688526 ``` ## **`BY ADV P.SIVARAJ`** ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` - **`2 SUB INSPECTOR OF POLICE, POOCHAKKAL POLICE STATION, ALAPPUZHA DISTRICT, PIN - 688526`** ## **`BY SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.10283 of 2023 ## -:2:- Dated this the 12[th] day of March, 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.796/2023 of the Poochakkal Police Station, Alappuzha, registered against them for allegedly committing the offences punishable under Sections 406 and 420 of the Indian Penal Code, 1860. 3. The crux of the prosecution case is that: the accused, in furtherance of their common intention to make unlawful gain, made the defacto complainant believe that they would transfer the ownership of a motorcar bearing registration No.KL-32-M-4576, which stood in the name of her husband, to the defacto ## B.A.No.10283 of 2023 -:3:- complainant’s name. After obtaining all signatures, the accused fraudulently transferred ownership of the vehicle to the name of the second accused. Thus, the accused have committed the above offences. 4. Heard; Sri.Sivaraj.P, the learned counsel appearing for the petitioners and Smt.Seetha.S., the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioners submitted that the petitioners have no instructions in the above bail application. The said submission is recorded. 6. The learned Public Prosecutor opposed the application. She submitted that the petitioners have fraudulently transferred the vehicle, which stood in the name of the husband of the defacto complainant, to the name of the second accused. She submitted that the B.A.No.10283 of 2023 ## -:4:- petitioners’ custodial interrogation 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. 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.10283 of 2023 ## -:5:- (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 being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is B.A.No.10283 of 2023 ## -:6:- 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 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.10283 of 2023 ## -:7:- 9. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submission made across the Bar, and particularly taking note of the fact that the petitioners’ custodial interrogation is necessary, the recovery is to be effected and that the investigation is still in progress, I am of the definite view that the petitioners are not entitled to an order of pre-arrest bail. Hence, I am not inclined to allow the bail application. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/12.03.24 ## B.A.No.10283 of 2023 ## -:8:- ## **`APPENDIX OF BAIL APPL. 10283/2023`** ``` PETITIONER ANNEXURES ANNEXURE A1TRUE COPY OF THE F.I.R. IN CRIME NO.796/2023 OF POOCHAKKAL POLICE STATION, ALAPPUZHA DISTRICT DATED 13.10.2023 ANNEXURE A2TRUE COPY OF THE NOTICE DATED 9.11.2023 RECEIVED BY THE 1ST PETITIONER FROM THE POOCHAKKAL POLICE. ANNEXURE A3TRUE COPY OF THE NOTICE DATED 9.11.2023 RECEIVED BY THE 2ND PETITIONER FROM THE POOCHAKKAL POLICE. ANNEXURE A4TRUE COPY OF THE ORDER DATED 20.10.2023 IN W.P.(C) NO.34764/2023 OF THE HON'BLE HIGH COURT OF KERALA ```