Shiny Suseelan v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 10608 OF 2023 ``` ``` CRIME NO.0348/2023 OF KAINADY POLICE STATION, ALAPPUZHA ``` ``` AGAINST THE ORDER IN CMP NO.2417 OF 2023 OF DISTRICT & SESSIONS COURT, ALAPPUZHA ``` ## `PETITIONER:` ``` SHAINY SUSEELAN, AGED 37 YEARS D/O.SUSEELAN, NIVEDHYAMKRISHNAPURAM MURI, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN – 690533 ``` ``` BY ADVS.S.SHANAVAS KHAN S.INDU KALA G.NAMBIAR ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2THE STATION HOUSE OFFICER, KAYAMKULAM POLICE STATION, ALAPPUZHA, PIN – 690502 ``` ``` 3RAMESHAN, S/O.RAMASWAMY, SREEMANDHIRAM, KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE, ALAPPUZHA (IMPLEADED AS R2 AS PER ORDER DTD 19/12/23 IN CRL MA 2/23) ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.10608/2023_ _-:2:-_ _Dated this the 9[th] day of April, 2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.348/2023 of the Kainady Police Station, Alappuzha, registered against the accused for allegedly committing the offence under Sections 406 & 420 of the Indian Penal Code, 1860. 3. The crux of the prosecution case, is that: the accused made the son of the de-facto complainant believe that if he made an investment in the new finance company of the accused, she would pay him good dividends. Believing the words of the accused, the de-facto complainant’s son paid a total amount of Rs.3,62,800/-. However, the accused failed to pay the dividend or return the capital. Thus, the accused has _B.A.No.10608/2023_ _-:3:-_ committed the above offences. 4. Heard; Sri.S.Shanavas Khan, the learned counsel appearing for the petitioner `;` Sri. C.S, Hrithwik., the learned Senior Public Prosecutor and Sri. Ravi Krishnan, the learned counsel appearing for the de-facto complainant/intervenor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. She has been falsely implicated in the crime. The dispute between the parties is purely civil in nature. The petitioner's custodial is not and no interrogation necessary, recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. He submitted that there are incriminating materials to establish the petitioner’s involvement in the above crime. The petitioner’s custodial _B.A.No.10608/2023_ _-:4:-_ interrogation is necessary, and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the full and proper investigation of the case. Hence, the application may be dismissed. 7. The learned counsel for the intervenor also opposed the application. He submitted that the petitioner and the de-facto complainant were referred to the Mediation Centre, wherein the petitioner had agreed to return the entire amount due to the de-facto complainant. Accordingly, this Court passed an interim order directing the Investigating Officer not to arrest the petitioner. However, the petitioner has failed to pay the entire amount due to the de-facto complainant, which by itself shows the involvement of the petitioner in the crime. 8. On a perusal of the materials on record, it can be seen that, when the bail application came up for _B.A.No.10608/2023_ _-:5:-_ consideration on 12.01.2024, the parties were referred to mediation. Even though the mediation was not successful, the petitioner volunteered before this Court that he would pay the de-facto complainant an amount of Rs.1,00,000/- towards outstanding liability. But, no amount has been paid. 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 to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. In **Srikant Upadhyay v. State of Bihar** _B.A.No.10608/2023_ _-:6:-_ [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “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). 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 _B.A.No.10608/2023_ _-:7:-_ 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. ….. ……” 11. On an anxious consideration of the facts, the rival submission made across the Bar, and the materials placed on record, especially on considering the fact that the petitioner's custodial interrogation is necessary and recovery is to be effected, I am of the firm view that the petitioner has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 _B.A.No.10608/2023_ _-:8:-_ days from today, she 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/09.04.24 //True copy// P.A. To Judge The name of the Police Station occurring in the second paragraph of the final order dated 09/04/2024 in B.A.No.10608/2023 stand corrected and substituted as “Kayamkulam Police Station, Alappuzha District” _B.A.No.10608/2023_ _-:9:-_ instead of “Kainady Police Station, Alappuzha”. It is clarified that the time period fixed by this Court directing the petitioner to surrender before the Investigating Officer within 10 days from 09.04.2024 is extended till 30.04.2024, as per the order dated 23.04.2024 in Crl.M.A.1/2024 in B.A.No.10608/2023. Sd/JOINT REGISTRAR