Shibu S. v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 BAIL APPL. NO. 816 OF 2024 ``` ``` CRIME NO.820/2023 OF Harippad Police Station, Alappuzha ``` ## **`PETITIONER/S:`** ``` SHIBU S, AGED 50 YEARS S/O. SAHADEVAN, SHIBU BHAVANAM, MAHADEVIKKADU, S.N. NAGAR, KARTHIKAPALLY, ALAPPUZHA, PIN - 695516 BY ADVS. K.S.PRENJITH KUMAR MANU S. JISMIN JOSE BEA MARY BENNY ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, HARIPPAD POLICE STATION HARIPPAD, ALAPPUZHA, PIN - 695514 ``` ## **`OTHER PRESENT:`** ``` sr pp smt neema t v ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- B.A.No.816 of 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 petitioner is the first accused in Crime No.820 of 2023 of the Harippad Police Station, Alappuzha, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 419, 420, 465, 468, 471 read with Sec.34 of the Indian Penal Code, 1860, (‘IPC’, for short). 3. The crux of the prosecution case is that while the 1[st] accused while working as the Secretary of Karthikappally Taluk Aided Primary Teachers Co-operative Bank (Ltd.) No.A278, he along with the 2[nd] accused had forged salary certificates of teachers, who are the members of the Co- -3- B.A.No.816 of 2024 operative bank, advanced loans in the name of fictitious persons and deposited an amount of Rs.11,75,000/- in the bank account of the 3[rd] accused – the daughter of the 1[st] accused, and caused a loss of Rs.51/- lakh to the bank. Thus, the accused have committed the offences. 4. Heard Sri.K.S.Prenjith Kumar, learned counsel appearing for the petitioner and Smt. Neema T.V., the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. The petitioner has not committed any misappropriation. It is out of the animosity of the President of the Bank that the petitioner has been made an accused in the case. The petitioner is a cardiac patient. The petitioner’s custodial interrogation is not necessary. The petitioner is willing to co- -4- B.A.No.816 of 2024 operate with the investigation and abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She contended that there str incriminating materials against the petitioner to substantiate that he has misappropriated the money of the bank by fabricating false documents and, thereafter, transferring the said amount to the bank account of his daughter – the 3[rd] accused. The petitioner’s custodial interrogation is absolutely necessary for the proper and full investigation of the crime. Recoveries have to be affected. If the petitioner is granted an order of pre-arrest bail, it will hamper the investigation. Hence, the application may be dismissed. -5- B.A.No.816 of 2024 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; -6- B.A.No.816 of 2024 (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 over implication 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; -7- B.A.No.816 of 2024 (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 discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether -8- B.A.No.816 of 2024 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. 10. In **P. Chidambaram v. Directorate of Enforcement** [(2019) 9 SCC 24], the Hon'ble Supreme Court has observed thus: 1“69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” -9- B.A.No.816 of 2024 10. On a consideration of the facts, materials placed on record, the rival submissions made across the Bar, and on comprehending the nature, seriousness and gravity of the economic offences alleged against the petitioner, that the petitioner had allegedly transferred the money to the bank account of the 3[rd] accused – his daughter, the investigation in the case is at the preliminary stage, that the petitioner’s custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the petitioners have not made any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Nonetheless, taking into account the medical condition of the petitioner I direct that, if the petitioner surrenders before the Investigating Officer, within ten days from today, -10- B.A.No.816 of 2024 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 before the jurisdictional court, the said court shall, untrammeled by any observations in this order, consider and dispose of the application on its merits and in accordance with law, on the date of filing the application itself. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as the new order has been passed in this case. **==> picture [26 x 13] intentionally omitted <==** ## **C.S.DIAS, JUDGE** das -11- B.A.No.816 of 2024 ## **`APPENDIX OF BAIL APPL. 816/2024`** ``` PETITIONER ANNEXURES Annexure A1A TRUE COPY OF THE FIR IN CRIME NO. 820/2023 OF HARIPPAD POLICE STATION, ALAPPUZHA ``` ``` Annexure A2A TRUE COPY OF DISCHARGE SUMMARY ISSUED FROM THE DEPARTMENT OF PARUMALA IS PRODUCED CARDIOLOGY, ST. GREGORIOS MEDICAL MISSION HOSPITAL ``` ``` Annexure A3A TRUE COPY OF MEDICAL CERTIFICATE DATED 24.01.2024 ISSUED BY CARE CRAFT HOSPITAL, HARIPAD Annexure A4TRUE COPY OF THE DAILY STATUS IN RESPECT OF CRL MP NO. 88 OF 2024 OF THE SESSIONS COURT, ALAPPUZHA ```