Sudheesh and Sarathkumar v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 8274 OF 2023 ``` ``` CRIME NO.709/2023 OF MAYYIL POLICE STATION, KANNUR ``` ## `PETITIONERS:` ``` 1SUDHEESH, AGED 43 YEARS S/O BALAN, MARYANGALATH HOUSE, VELLAVE, KUTTIYERI, TALIPARAMBA, KANNUR, PIN – 670141 2SARATHKUMAR, AGED 29 YEARS S/O SASEENDRAN, SREERANGAM HOUSE, CHELERI, KANNUR, PIN – 670604 ``` ``` BY ADV C.K.SREEJITH ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2MUHAMMED JABIR S/O. T.K. ALIKUNJU, KADAVINTAVIDE, KANNADIPARAMBA TALKIES ROAD, KANNUR CITY IS IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED 18-10-23 IN CRL MA 1/23 ``` ## `OTHER PRESENT:` ## `SR PP SMT SEETHA S` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.8274/2023 -:2:- Dated this the 28[th] day of February,2024 ## **O R D E R** 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 petitioners are the accused Nos.1 & 2 in Crime No.709/2023 of Mayyil Police Station, Kannur, registered against them for allegedly committing the offences punishable under Sections 406 & 420 of the Indian Penal Code, 1860. 3. The crux of the prosecution case is that: the de-facto complainant had entrusted the first accused a gold chain of two sovereigns, two mobile phones and also some garments for his children to be handed over to his wife in India, when the first accused was coming down from Saudi Arabia on his leave. However, the first accused cheated the de-facto complainant by giving the above articles to the second accused and not B.A.No.8274/2023 -:3:- to the wife of the de-facto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri. C.K. Sreejith, the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the respondents. 5 `.` The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The entire entrustment was made in Saudi Arabia. Therefore, the Investigating Officer does not have the jurisdiction to register the crime. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She contended that the offence was committed within the jurisdiction of the Investigating Officer because he was supposed to give the articles to the wife of the de-facto complainant in India. The B.A.No.8274/2023 -:4:- petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. 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. B.A.No.8274/2023 -:5:- **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; (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, B.A.No.8274/2023 -:6:- 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. ## 8. 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 a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred B.A.No.8274/2023 -:7:- upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 9. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, especially taking note of the seriousness, gravity, and nature of the offence alleged against the petitioners, and on prima-facie being satisfied that the offences will stand attracted, that the petitioners’ custodial interrogation is necessary, that the recovery is to be effected, and that the investigation is in the preliminary stage, I am convinced that the petitioners have not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Section 438 of the B.A.No.8274/2023 -:8:- 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. 10. Nonetheless, I direct that, if the petitioners surrender before the Investigating Officer within 10 days from today, they shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioners move application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits. If the petitioners do not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioners as if no order has been passed in this case. ## **Sd/-C.S.DIAS,JUDGE** DST/28.02.24 //True copy// P.A. To Judge