Sivaprasad K.S v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5741 OF 2024 ``` ``` CRIME NO.39/2024 OF MANNARKKAD POLICE STATION, PALAKKAD ``` ## `PETITIONER:` ``` SIVAPRASAD K.S AGED 40 YEARS S/O.SIVARAMAN, KULAPPARAL HOUSE VAZHEMPURAM.P.O, KARAKURUSSY, MANNARKKAD, PALAKKAD DISTRICT, PIN – 678595 ``` ``` BY ADVS.T.K.SANDEEP RESHMA VISWANATHAN SWETHA R. ``` ``` RESPONDENT: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.5741/2024_ _-:2:-_ _Dated this the 24[th] day of July, 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 second accused in Crime No.39/2024 of the Mannarkkad Police Station, Palakkad, which is registered against the accused (two in number) for allegedly committing the offences punishable under Sections 468 & 471 of the Indian Penal Code, 1860. 3. The gist of the prosecution case is that: a person named Kurian Thannikkal had died. His son, T.K. Kurian, had applied for a family membership certificate, and after an inquiry, the certificate bearing No.82480447 dated 18.12.2023 was issued with the names of eight family members, including the name of _B.A.No.5741/2024_ _-:3:-_ Smt. Alice and her two children, the wife and two children of Avarachan, the predeceased son of Kurian Thannikkal. Subsequently, another family membership certificate was produced without the names of Alice and her two children. On finding the conspicuous absence of the three names from the subsequent certificate, the Village Officer had forwarded a complaint to the Investigating Officer and the present crime has been registered. It was learnt that it was the second accused who fabricated the said certificate as instructed by the first accused. Thus, the accused have committed the above offences. 4. Heard: Sri. T.K.Sandeep, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. The _B.A.No.5741/2024_ _-:4:-_ petitioner is only a scribe. The petitioner had executed the sale deed on the basis of the family membership certificate that was handed over to him by the first accused. The petitioner is unaware of the family members of the first accused. In any given case, the petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that it was the petitioner who was instrumental in creating the fabricated document. It was only for the purpose of avoiding the widow and the children of Avarachan, that the accused Nos.1 & 2 had fabricated the family membership certificate and produced it before the Registering Authority. It was when the de-facto complainant who noticed the fabricated certificate and the present crime was registered. The petitioner’s _B.A.No.5741/2024_ _-:5:-_ custodial interrogation is necessary for the proper and full investigation of the crime. Moreover, the certificates also have to be recovered. If the petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that he, along with the first accused, had fabricated a family membership certificate after removing the names of the widow and two children of late Avarachan, who also had a share in the property of late Kurian Thannikkal. Whether or not the petitioner has fabricated the document is a matter that would have to be investigated and ultimately be decided at the time of trial. Going by the nature of accusations levelled against the petitioner, the same is serious and grave in nature, since a public document is alleged to be fabricated. However, the prima facie materials _B.A.No.5741/2024_ _-:6:-_ ## substantiate the petitioners involvement. 8. In **Srikant Upadhyay v. State of Bihar** [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). xxx xxx xxx 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 _B.A.No.5741/2024_ _-:7:-_ 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 such orders shall be passed in eminently fit cases. 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 _B.A.No.5741/2024_ _-:8:-_ misused. 10. On an anxious consideration of the facts, rival submissions made across the Bar, and the materials placed on record, and particularly on comprehending the nature, seriousness, and gravity of the accusations levelled against the petitioner, prima facie there are incriminating materials to substantiate the petitioner’s involvement in the crime, that the petitioner’s custodial interrogation is necessary, and the recovery is to be effected, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary 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. Resultantly, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within one week from today, he shall be interrogated and, _B.A.No.5741/2024_ _-:9:-_ 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 the case. Sd/- ## **C.S.DIAS,JUDGE** DST/24.07.24 //True copy// P.A. To Judge