Shyju C.P v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945** **BAIL APPL. NO. 1330 OF 2024** **CRIME NO.01/2024/KNR OF VACB, KANNUR** ## **PETITIONER/2ND ACCUSED:** **SHYJU C.P, AGED 42 YEARS, S/O.SAHADEVAN, RESIDING AT "DEVARAGAM", EDAYILPEEDIKA, MAHI, PIN - 670672 BY ADVS. M.A.VAHEEDA BABU BABU KARUKAPADATH P.U.VINOD KUMAR ARYA RAGHUNATH KARUKAPADATH WAZIM BABU P.LAKSHMI AYSHA E.M. SHIFANA KAISE DENNIS BIJU** ## **RESPONDENT/RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** **BY ADV SRI.RAJESH A, SPL GOVERNMENT PLEADER (VIGILANCE) SMT.REKHA SR. PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A No.1330 of 2024 2 K.BABU, J. -------------------------------------B.A No.1330 of 2024 --------------------------------------- Dated this the 18[th] day of March, 2024 ## O R D E R This is an application filed under Section 438 of the Code of Criminal Procedure. 2. The petitioner is accused No.2 in V.C No.01/24/KNR of VACB, Kannur. He is alleged to have committed the offences punishable under Section 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 2018 and Sections 120-B and 465 of the Indian Penal Code. ## Prosecution case 3. Sri.Pushpajan K.V, the then Sub-Registrar of Kalliasseri Sub-Registrar Office filed a complaint before the Vigilance Director, Thiruvananthapuram alleging that the petitioner and the other accused committed a criminal conspiracy pursuant to which the petitioner prepared document No.649/2022 and registered on 17.03.2022 by making false entries. The petitioner made changes in foot notes and thereby dishonestly and fraudulently cheated the B.A No.1330 of 2024 3 Government. ## 4. The petitioner pleaded the following: The petitioner is an Advocate by profession. As part of his professional work, he undertakes documentation and registration works as well. The petitioner prepared a sale deed, which was to be executed by one Sri.Mohammed Noushad in favour of one Abdulla and another and presented for registration on 17.03.2022. On perusal of the document and PAN card, the staff in the office of the Sub-Registrar pointed out that the initials and the address of the first among the purchaser did not tally with such details in the PAN card and instructed the petitioner to make necessary corrections with respect to those pages of the documents. The staff of the petitioner who made the entries with respect to the address of the parties committed mistakes. The Sub-Registrar registered the document on the same day as document No.649/2022 of SRO, Kalliassery. The petitioner has not committed any corrections in the document deliberately or with any malafide intention. 5. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor. B.A No.1330 of 2024 4 6. The learned counsel for the petitioner submitted that the petitioner has not involved in the offences alleged. It is further submitted that the petitioner is prepared to abide by any condition to be imposed by this Court. 7. The learned counsel for the petitioner submitted that the staff at the office of the Sub-Registrar committed mistakes in entering the address of the purchaser. The petitioner has not committed any offences as alleged. The petitioner has been falsely implicated in this crime with ulterior motive. 8. The learned counsel for the petitioner further submitted that the difference of opinion between the staff in the Sub-Registrar office and the Sub-Registrar resulted in the filing of the complaint and registration of the crime. 9. The learned Senior Public Prosecutor submitted that materials are sufficient to attract the offences alleged. 10. The specific case of the petitioner is that the petitioner only prepared the document for registration. He has not made any corrections as alleged and that the corrections, if any, made were as per the instructions of the office of the Sub-Registrar. B.A No.1330 of 2024 5 11. It is submitted that the mens rea of the petitioner in the commission of the alleged offences is doubtful. The petitioner has established a prima facie case for getting the benefits contained in Section 438 Cr.PC. 12. While considering the scope of jurisdiction under Section 438 Cr.P.C., the Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] held thus: “31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or B.A No.1330 of 2024 6 the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216] , which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.” ## 13. In Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694] the Apex Court held thus:- “113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the B.A.Nos.5010 of 2021 & Connected cases 40 accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.” (In Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1]) the declaration of law in Siddharam Satlingappa Mhetre that no condition can be imposed while granting order of anticipatory bail alone was overruled) 14. In Sushila Aggarwal , the Constitution Bench of the Apex Court, following the decision in Gurbaksh Singh Sibbia , held that B.A No.1330 of 2024 7 while considering an application (for grant of anticipatory bail) the Court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. 15. The learned Public Prosecutor opposed the bail plea of the petitioner. Having considered the entire circumstances on the touchstone of the principles discussed above, I am of the view that the petitioner is entitled to anticipatory bail. In the result, the Bail Application is allowed as follows: - (a) The petitioner shall appear before the Investigating Officer on 27.03.2024 between 10.00 AM and 11.00 AM for interrogation. - (b) The Investigating Officer is directed to release the petitioner on bail, in the event of his arrest, on his executing bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like sum. B.A No.1330 of 2024 8 - (c) The petitioner shall appear before the Investigating Officer on all Saturdays between - 10 A.M. and 11 A.M. till the final report is filed. - (d) The petitioner shall not influence the witnesses in this case or tamper with the evidence. - (e) The petitioner shall fully co-operate with the investigation, including subjecting himself to `deemed custody’, as observed in Gurbaksh Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] and Sushila Aggarwal & Others v. State (NCT of Delhi) and Ors. (AIR 2020 SC 831) , for the purpose of discovery or identification, if - any. K.BABU, JUDGE KAS B.A No.1330 of 2024 9 ## **APPENDIX OF BAIL APPL. 1330/2024** **PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE SALE DEED NO.649/2022 OF SRO KALLIASSERY**