Siyam B.S v. State of Kerala and Subash Chandra Bose

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ``` BAIL APPL.NO.1512 OF 2024 ``` ``` CRIME NO.1381/2024 OF Thampanoor Police Station, ``` ## **`Thiruvananthapuram`** ``` ------------------- ``` ## **`PETITIONER/1ST ACCUSED :-`** ``` SIYAM B.S, AGED 38 YEARS S/O.BASHEER, AYANIMOOD VEEDU, CHITTAYATHU KONAM, MUKKOLA, NEDUMANGAD, THIRUVANANTHAPURAM, PIN - 695 541 ``` ``` BY ADV V.A.VINOD ``` ## **`RESPONDENTS/STATE AND COMPLAINANT :-`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 2STATION HOUSE OFFICER, THAMPANOOR POLICE STATION, THIRUVANANTHAPURAM, PIN - 695 001 3SUBASH CHANDRA BOSE, S/O.SOMAN NAIR, THUNDATHIL HOUSE, NEAR KATTACHIRA TEMPLE, CHEMPAZHANTHI WARD, ULIYAZHATHARA VILLAGE, THIRUVANANTHAPURAM, PIN - 695 587 ``` ``` BY ADV SATHEESH N BY SMT.SEETHA S, SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.1512 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 4 th day of June, 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 first accused in Crime No.1381/2023 of the Thampanoor Police Station, Thiruvananthapuram, which is registered against the accused, for allegedly committing the offences punishable under Sections 406 and 420 of the Indian Penal Code. 3. The gist of the prosecution case is that; the accused had assured the de facto complainant that he would secure an admission for his child for the BCA course at Yenepoya College, Mangalore. Accordingly, he received an amount of Rs.50,000/- from the de facto complainant. However, the accused did not secure the admission or refund the amount received. Thus, the accused have committed the above offences. ``` BAIL APPL.NO.1512 OF 2024 ``` ``` -: 3 :- ``` 4. Heard; Sri.V.A.Vinod, the learned counsel appearing for the petitioner, Smt.Seetha.S., the learned Senior Public Prosecutor and Sri.N.Satheesh, the learned counsel appearing for the third respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner's custodial interrogation is not necessary. The petitioner is willing to refund the entire amount taken from the de facto complainant. In fact, pursuant to the Memorandum of Mediation Agreement arrived at between the parties, the petitioner has paid a portion of the amount. The petitioner is willing to pay the remaining amount. Hence, the application may be allowed. 6. Learned Public Prosecutor and the learned counsel appearing for the third respondent opposed the application. They submitted that the petitioner has thoroughly cheated the third respondent. In fact, a ``` BAIL APPL.NO.1512 OF 2024 ``` ``` -: 4 :- ``` mediation agreement was executed between the parties and the petitioner agreed to refund Rs.59,000/- to the de facto complainant. However, he has not paid the said amount. This substantiates the _mens rea_ of the petitioner to cheat the de facto complainant. 7. The prosecution allegation against the petitioner is that; he had assured admission for the de facto complainant's daughter for BCA course in a college in Mangalore. Consequently, he received Rs.50,000/- and has failed to secure the admission or return the amount. 8. When the application came up for consideration on 02.04.2024, the parties were referred to mediation. In the mediation proceedings that was conducted in the District Mediation Centre, Thiruvananthapuram, the petitioner agreed to refund Rs.59,000/- to the third respondent on or before 15.05.2024. The fact remains that the petitioner has not complied with the terms and ``` BAIL APPL.NO.1512 OF 2024 ``` ``` -: 5 :- ``` conditions of the Memorandum of Settlement arrived at between the parties. 9. 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 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). xxxxxxxxxxx xxxxxxxxx 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 ``` BAIL APPL.NO.1512 OF 2024 ``` ``` -: 6 :- ``` 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 such orders shall be passed in eminently fit cases. xxx xxx xxx”. 10. 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. ``` BAIL APPL.NO.1512 OF 2024 ``` ``` -: 7 :- ``` 11. On an anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, especially on comprehending the nature, gravity, and seriousness of the accusations levelled against the petitioner, that the petitioner’s custodial interrogation is necessary, I am convinced that the petitioner has not made out any exceptional ground to invoke the discretionary jurisdiction of this Court under Sec.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 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 ``` BAIL APPL.NO.1512 OF 2024 ``` ``` -: 8 :- ``` 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** Jvt/7.6.2024 ``` BAIL APPL.NO.1512 OF 2024 ``` ``` -: 9 :- ``` ## **`APPENDIX OF BAIL APPL. 1512/2024`** |**`PETITIONER ANNEXURES :-`**|**`PETITIONER ANNEXURES :-`**| |---|---| |**`Annexure A1`**|**`TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME`**| ||**`NO 1381/2023 OF THAMPANOOR POLICE STATION,`**| ||**`THIRUVANANTHAPURAM`**| |**`Annexure A2`**|**`COPY OF THE ORDER IN CRL M.C NO 243/2024 DATED`**| ||**`15.02.2024`**|