SREEJESH K.S. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945** ## **BAIL APPL. NO. 858 OF 2024** **CRIME NO.1246/2023 OF MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM** **PETITIONER/ACCUSED NO.3:** **SREEJESH K.S. AGED 36 YEARS KALARIKKAL HOUSE VATTANATHARA, MANNAMPETTA, NEAR POOKODE BHAGATHIKAVU TEMPLE, THRISSUR, PIN - 680302** **BY ADV V.T.RAGHUNATH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **OTHER PRESENT:** **PP SMT NIMA JACOB** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO.858 OF 2024** **2** ## **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 third accused in crime No.1246/2023 of the Medical College Police Station, Thiruvananthapuram, registered against the accused (6 in number) for allegedly committing the offences punishable under Sections 465, 466, 468, 471, 420, 120B and 170 of the Indian Penal Code. 3. The gravamen of the prosecution case is that: the accused 1 to 4 formed a WhatsApp group for job aspirants and the first and third accused impersonating themselves as police officer and an official of the Public Service Commission's (P.S.C.), contacted the aspirants through the mobile phone in the name of the third accused and assured them jobs. Thereafter, as per the script prepared by the first accused, the fifth accused by using the phone number **BAIL APPL. NO.858 OF 2024** **3** provided by the first accused in his presence, conducted a mock interview among the members of the group. Again representing themselves as the officials of the PSC, the accused collected a total amount of Rs.88/- lakh from the aspirants and credited the money to the bank account of the second accused, who the wife of the third accused. Subsequently, the amounts were transferred from the account of the second accused to the account of the third accused. Thus, the accused have committed the above offence. 4. Heard Sri.Raghunath V.T., the learned counsel appearing for the petitioner and Smt. Nima Jacob, the learned Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. Even if the allegations in the FIR are taken on its face value, they will not attract the offences alleged against the petitioner. In fact, the petitioner is a victim of the conspiracy that has been committed by the **BAIL APPL. NO.858 OF 2024** **4** other accused, which is evident from Annexure 1 call letter that was received by the petitioner. The other accused in the crime have already been arrested and the investigation in the case is practically complete. The petitioner's custodial interrogation is not necessary. The petitioner is willing to cooperate with the investigating officer and abide by any stringent condition that may be imposed by this Court. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor vehemently opposed the application. She contended that the all the accused have conspired together and have perpetrated a grave economic offence. The very fact that Section 120B of IPC has been incorporated in the crime shows that all the accused have a major role in cheating general public. An amount of Rs.88/lakh has been siphoned off from the public by making false promises. The petitioner is none other than the husband of the second accused. The second accused received Rs.88/lakh in her bank account which has been subsequently **BAIL APPL. NO.858 OF 2024** **5** transferred to the bank account of the petitioner. The petitioner's custodial interrogation is necessary and the recovery is to be effected. All the other accused surrendered before the Investigating Officer and they were arrested and remanded to judicial custody. If the petitioner is granted an order of pre-arrest bail, it would hamper the full and proper investigation of the crime. Moreover, the petitioner would intimidate and influence the witnesses. Hence, the application may be dismissed. 7. The prosecution allegation is that the accused had formed a WhatsApp group and impersonated themselves as government officials and offered government employments to the victims who fell into their prey. An amount of Rs.88/lakh was collected by the second accused and the same was transferred to the account of the third accused. The phone calls were made to the aspirants from the mobile number of the petitioner. It is also revealed that memos of the Public Service Commission were printed and issued to the aspirants, and they were called for a fake interview. **BAIL APPL. NO.858 OF 2024** **6** ## Accordingly, the accused have committed the above offences. ## 8. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: **111.** No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. - **112** . The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: - (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; - (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; - (iii) The possibility of the applicant to flee from justice; - (iv) The possibility of the accused's likelihood to repeat similar or other offences; - (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; **BAIL APPL. NO.858 OF 2024** **7** - (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; - (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; - (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; - (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; - (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. **126** . We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. ## 9. In **Jai Prakash Singh v. State of Bihar and** **BAIL APPL. NO.858 OF 2024** **8** **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 **P. Chidambaram v. Directorate of** **Enforcement** [(2019) 9 SCC 24], the Hon'ble Supreme Court has observed thus: “69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” ## 11. On an anxious consideration of the facts, materials **BAIL APPL. NO.858 OF 2024** **9** placed on record, the rival submissions made across the Bar, and on comprehending the nature, seriousness and gravity of the economic offences alleged against the petitioner, that the investigation in the case is only at a nascent stage, that the petitioner's custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the petitioner has not made any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS** **JUDGE** **shg**