ShyLaja S v. State of Kerala and Station House Officer, Kollam East Police Station

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 11[TH] DAY OF JUNE 2024 / 21ST JYAISHTA, 1946 BAIL APPL. NO. 4280 OF 2024 ``` ``` CRIME NO.1007/2023 OF KOLLAM EAST POLICE STATION, KOLLAM AGAINST THE ORDER DATED 01.12.2023 IN CRMC NO.2469 OF 2023 OF DISTRICT COURT & SESSIONS COURT,KOLLAM ``` ## **`PETITIONER/ACCUSED:`** ``` SHYLAJA.S AGED 53 YEARS W/O.SUDHEER, PANAVILA HOUSE, VAIDYASALA NAGAR-207, ASRAMAM P.O, KOLLAM, PIN - 691002 ``` ``` BY ADVS. K.SIJU ANJANA KANNATH MARIYA JOSE ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` - **`2 STATION HOUSE OFFICER`** ``` KOLLAM EAST POLICE STATION, KOLLAM DISTRICT, PIN - 691001 ``` ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.4280 of 2024 ## -:2:- Dated this the 11[th] day of June, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.1007/2023 of the Kollam East Police Station, Kollam, registered against the accused for allegedly committing the offences punishable under Sections 406, 409 and 420 of the Indian Penal Code. 3. The crux of the prosecution case is that: the accused, who was appointed as a Mahila Pradhan Agent of National Savings Scheme, Kollam district Head Quarters, during the period between 2017 to 2022, collected money from depositors of the defacto complainant, but failed to remit the same to the district Head Quarters/defacto complainant, instead ## B.A.No.4280 of 2024 -:3:- misappropriated the money. The preliminary investigation reveals that the petitioner has misappropriated Rs.50,000/- from four depositors. Many other investors who have been cheated by the accused. Thus, the accused has committed the above offences. 4. Heard; Sri.K. Siju, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik, the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. The petitioner could not remit the money that was collected from the depositors since her husband was sick. The petitioner is willing to pay the amount of Rs.50,000/- to the defacto complainant. In any given case, only one of the depositors has complained to the defacto complainant. The petitioner's custodial interrogation is B.A.No.4280 of 2024 -:4:- not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. He submitted that the District Collector, Kollam, had conducted a factual enquiry and, by order No. 136/S/2/2023 dated 30.06.2023, has found that the petitioner has misappropriated the remittances made by the depositors. Consequently, the petitioner's agency had been terminated. The investigation has unveiled that the petitioner has misappropriated the money of several depositors. The investigation is in progress. If the petitioner is granted an order of prearrest bail, it would certainly hamper with the investigation. The petitioner's custodial interrogation is necessary, and the recovery is to be effected. Hence, the application may be dismissed. 7. The prosecution allegation against the ## B.A.No.4280 of 2024 -:5:- accused is that, while she was working as an Mahila Pradhan Agent of the National Savings Scheme, Kollam District Head Quarters, she misappropriated the remittances made by the depositors under the scheme and cheated the defacto complainant as well as the depositors. The preliminary investigation reveals that the petitioner has misappropriated an amount of Rs.50,000/- of the four depositors. The investigation is in progress. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: “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 ## B.A.No.4280 of 2024 ## -:6:- 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). **==> picture [274 x 7] intentionally omitted <==** 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 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 ## B.A.No.4280 of 2024 ## -:7:- such orders shall be passed in eminently fit cases. xxx xxx xxx”. 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. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations leveled against the petitioner, prima facie there are materials to substantiate the B.A.No.4280 of 2024 ## -:8:- petitioner's involvement in the crime, that the petitioner's custodial interrogation is necessary and recovery is to be effected,I am of the definite view that the petitioner has not made out any exceptional ground to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I am not inclined 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 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, consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer B.A.No.4280 of 2024 -:9:- shall be free to arrest the petitioner as if no order has been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** mtk/12.06.24