SHEELA D/O GOPALAN VAIDYAR v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 BAIL APPL. NO. 583 OF 2024 ``` ``` CRIME NO.1384/2023 OF Cherpu Police Station, Thrissur AGAINST THE ORDER IN MC 1793/2023 OF DISTRICT COURT & ``` ## **`SESSIONS COURT,THRISSUR`** ## **`PETITIONER/ACCUSED:`** ``` SHEELA D/O GOPALAN VAIDYAR AGED 54 YEARS MANAKUNNATHU HOUSE, PANAMKULAM, POST KARUVANNUR, THRISSUR DISTRICT, KERALA, PIN - 680711 ``` ``` BY ADVS. T.K.ASOKAN RASMI NAIR T. K.R.DALLY ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 THE SUB INSPECTOR OF POLICE, CHERPU POLICE STATION, CHERPU, THRISSUR DISTRICT THE SUB INSPECTOR OF POLICE, CHERPU POLICE STATION, CHERPU, THRISSUR DISTRICT, PIN - 680561 BY SR PP SMT.SEETHA. S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.583 of 2024 -:2:- Dated this the 5[th] day of February, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the sole accused in Crime No.1384/2023 of the Cherpu Police Station, Thrissur, registered against him for allegedly committing the offences punishable under Sections 419 and 420 of the Indian Penal Code, Section 37 r/w Section 36 of the Kerala State Medical Practitioners Act, 2011 and Section 26 and 27 of the Kerala Clinical Establishment (Establishment and Regulation) Act, 2018. 3. The gist of the prosecution case is that: the accused without any recognized qualification or registration of the Medical Council, exhibited the board of Dr.Deepak, BAMS, with an intention to cheat B.A.No.583 of 2024 -:3:- the public, and was conducting ophthalmology treatment at her house at Panamkulam. Thus, the accused has committed the above offences. 4. Heard Sri.T.K. Asokan (Therlli), the learned counsel appearing for the petitioner and Smt. Seetha.S., the learned Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. The petitioner is only the landowner of the house where the clinic was conducted by two Ayurvedic doctors named Dr. Deepak and Dr. Arjun. The petitioner has not committed any crime. The petitioner has no criminal antecedents. The petitioner is a law-abiding citizen. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. B.A.No.583 of 2024 -:4:- 6. The learned Public Prosecutor opposed the application. She contented that after the two doctors had left, the petitioner referred dishonestly projected herself as a doctor and ran the clinic. It was on receipt of a complaint that the police knew that the petitioner was running the clinic and treating patients. It is revealed from the investigation that the petitioner has kept a board and also had printed visiting cards in her name projecting herself as a doctor. The petitioner’s custodial interrogation is necessary. The recovery is to be effected. If the petitioner is granted an order of prearrest bail, it would hamper with the full and proper investigation of the crime. Hence, the application may be dismissed. 7. The prosecution allegation is that the petitioner, without any qualification, license, or permission, projected herself as a doctor and ran an eye clinic, and cheated the public. B.A.No.583 of 2024 -:5:- 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; (ii) The antecedents of the applicant including the fact as to whether the accused has B.A.No.583 of 2024 -:6:- 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 B.A.No.583 of 2024 -:7:- 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. 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 B.A.No.583 of 2024 -:8:- to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. On an anxious consideration of the materials placed on record, the rival submission made across the bar, and taking note of the nature, gravity, and seriousness of the offences alleged against the petitioner, that the investigation in the case is only at the nascent stage, that petitioner’s custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the petitioner is not entitled to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I am of the view that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. 11. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 B.A.No.583 of 2024 -:9:- 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, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. 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/- mtk/05.02.24 **C.S.DIAS,JUDGE** B.A.No.583 of 2024 ## -:10:- ## **`APPENDIX OF BAIL APPL. 583/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure 1THE CERTIFIED COPY OF THE FIR REGISTERED BY 2ND RESPONDANT Annexure 2THE COPY OF REGISTRATION CERTIFICATE OF DR. ARJUN Annexure 3 THE AFFIDAVITE SWORN BY DR. ARJUN ```