Shiju Shihab v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, ``` ## **`1945`** ``` BAIL APPL. NO. 7666 OF 2023 ``` ``` CRIME NO.1014/2023 OF CHAVARA POLICE STATION, KOLLAM ``` ## **`PETITIONER/ACCUSED NO.2:`** ``` SHIJU SHIHAB, AGED 38 YEARS S/O SHIHABUDHEEN, REHUMATH MANZIL, ELAMPALLOOR P.O, KUNDARA, KOLLAM, PIN - 69150 ``` ``` BY ADV JOMY K. JOSE ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA, CHAVARA POLICE STATION THROUGH THE PUBLIC PROSECUTOR, KOLLAM, PIN - 691583 ``` ``` 2HAKKIM, S/O ABDUL MAJEED, MOORTHIKKAATTIL, VADAKKUM MURIYIL, KARTHIKAPPALLY TALUK, ARATTUPUZHA VILLAGE, KOLLAM , IMPLEADED AS ADDL R2 AS PER ORDER DATED 22/12/23 IN CRL MA 2/23. ``` ``` BY ADVS. BASIL CHANDY VAVACHAN CHARUTHA BHAIJU GEORGIE SIMON CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS KAVYA P.R. BASIL SCARIA ``` B.A.No.7666 of 2023 -:2:- ## **`OTHER PRESENT:`** ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.7666 of 2023 ## -:3:- ## **O R D E R** Dated this the 21[st] day of February, 2024 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 2[nd] accused in Crime No.1014/2023 of the Chavara Police Station, Kollam, registered against the accused (two in number) for allegedly committing the offences punishable under Sections 420, 465, 468, 473, 474 and 475 r/w Section 34 of the Indian Penal Code, 1860. 3. The gist of the prosecution case is that: the accused 1 and 2 had made false promises to the defacto complainant, assuring him to secure a job for his son as HRO Manager at Kerala Minerals and Metals Limited (‘KMML’ for short) Chavara. Accordingly, they induced the de facto complainant to pay them an amount of Rs.15,30,000/-. The accused fabricated an appointment B.A.No.7666 of 2023 -:4:- letter with the forged signature and seal of the HR Professional of the KMML and also a fabricated receipt for Rs.15,00,000/- issued by the Managing Director of the KMML and gave it to the defacto complainant. Thus, the accused deceived the de facto complainant and caused him a loss of Rs.15,30,000/-. Thus, the accused have committed the above offences. 4. Heard; Sri.Jomy K. Jose, the learned counsel appearing for the petitioner, Smt. Neema. T.V., the learned Senior Public Prosecutor appearing for the respondent and Sri.Basil Chandy Vavachan, the learned counsel appearing for the defacto complainant/ intervenor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. In fact, the petitioner is a victim of the cheating committed by the first accused. The petitioner had also paid money to the first accused, and he was B.A.No.7666 of 2023 ## -:5:- issued with a similar appointment letter of the KMML. The petitioner and the son of the de facto complainant were actually working as trainees in the KMML. It was on this acquaintance that the petitioner introduced the the de facto complainant to the first accused. The petitioner and other affected persons lodged complaint with KMML, which in turn submitted Annexure A4 complaint before the Investigating Officer. Pursuant to Annexure A4 complaint, Annexure A5 FIR was registered, wherein the petitioner is the witness. The fact that the petitioner is a witness in Annexure A5 crime would show the falsity of the present crime. There is no specific overt act alleged against the petitioner. The petitioner’s custodial interrogation is not necessary. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and also cooperate with the Investigating Officer. Hence, an order of prearrest bail may be passed. ## 6. The learned Public Prosecutor seriously opposed B.A.No.7666 of 2023 ## -:6:- the application. She submitted that there is a specific overt act alleged against the petitioner. The petitioner introduced the de facto complainant to the first accused. The investigation has revealed that the petitioner has also received a share from the money siphoned off by the first accused. She drew the attention of this Court to the complaint lodged by the de facto complainant, wherein it shows that the accused 1 and 2 had received an amount of Rs.7,00,000/- in cash. She contended that the investigation in the case is in progress, the custodial interrogation of the petitioner is absolutely necessary and the recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. The learned counsel for the intervenor also opposed the application. He contended that it was the petitioner who introduced the de facto complainant to the first accused. Actually, the petitioner had worn the B.A.No.7666 of 2023 ## -:7:- uniform of the company, showed the appointment letter, and also his salary certificate allegedly issued by the KMML. The accused convineingly made the de facto complainant to believe that they could secure the employment. The petitioner has an active role and involvement in the crime. Therefore, the petitioner may not be granted an order of pre-arrest bail since it will hamper with the investigation. Hence, the application may be dismissed. 8. The petitioner had moved a similar application before the Court of Session, Kollam, by filing Crl.M.C.No.1796/2023. The learned Sessions Judge, by Annexure A2 order, dismissed the application cardinally on the finding that the petitioner’s custodial interrogation is necessary and the recovery is to be effected. 9. The crux of the prosecution allegation is that the accused 1 and 2 had, in furtherance of their common intention, dishonestly represented to the de facto B.A.No.7666 of 2023 ## -:8:- complainant that they would secure an employment for his son as HRO Manager at the KMML. Consequently, the de facto complainant paid Rs.15/- lakh to the accused, out of which Rs.7/- lakh was paid in cash. 10. 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 B.A.No.7666 of 2023 ## -:9:- 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 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 B.A.No.7666 of 2023 ## -:10:- 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. 11. 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 B.A.No.7666 of 2023 ## -:11:- the crime and his liberty is being misused. 12. 10. In **P. Chidambaram v. Directorate of Enforcement** [(2019) 9 SCC 24], the Hon'ble Supreme Court has observed thus: “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.” 13. On an anxious consideration of the facts, materials placed on record, the rival submissions made across the Bar, especially taking note of the specific allegation in the complaint filed by the defacto complainant that an amount of Rs. 7 lakh was entrusted B.A.No.7666 of 2023 ## -:12:- to the petitioner on the assurance that they would secure an employment for the son of the defacto complainant in KMML, I am prima facie satisfied that the accusations levelled against the petitioner are grave and serious in nature. On comprehending the nature, seriousness, and gravity of the economic offences alleged against the petitioner, that the petitioner’s custodial interrogation is necessary, that the recovery is to be effected, and that the investigation is at the preliminary stage, I am of the definite view that the petitioner is not entitled to invoke the extraordinary 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. Consequently, the bail application is only to be rejected. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/ 21.02.2024 B.A.No.7666 of 2023 ## -:13:- ## **`APPENDIX OF BAIL APPL. 7666/2023`** ``` PETITIONER ANNEXURES ANNEXURE A1A CITIZEN COPY OF THE FIR IN CRIME NO. 1014/2023 CHAVARA POLICE STATION, KOLLAM DISTRICT DATED 23-06-2023 ANNEXURE A2A TRUE COPY OF THE ORDER OF PRINCIPAL SESSIONS COURT KOLLAM DATED 25-08-2023 ANNEXURE A3A TRUE COPY OF THE FORGED DOCUMENTS ISSUED BY THE 1ST ACCUSED TO THE PETITIONER ANNEXURE A4A TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE VIGILANCE AND SECURITY SUPERINTENDENT, KERALA MINERALS AND METALS LIMITED BEFORE THE STATION HOUSE OFFICER, CHAVARA POLICE STATION, KOLLAM DATED 15-07-2022 ANNEXURE A5A TRUE COPY OF THE FIR IN CRIME NO. 675/2022 OF CHAVARA POLICE STATION, KOLLAM DISTRICT ANNEXURE A6A TRUE COPY OF THE NOTICE ISSUED BY SUB INSPECTOR OF POLICE CHAVARA POLICE STATION, KOLLAM DATED 14-08-2022 ANNEXURE A7A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE STATION HOUSE OFFICER, KUNDARA POLICE STATION, KOLLAM DATED NIL RESPONDENT ANNEXURES ANNEXURE R2(1)THE TRUE COPY OF CMP 527/2023 FILED BY THE 2ND RESPONDENT BEFORE HONOURABLE CHIEF JFCM COURT, CHAVARA WHICH CAUSE TO REGISTER THE ABOVE CRIME ```