Suma T.S v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 BAIL APPL. NO. 2033 OF 2023 ``` ``` CRIME NO.896/2022 OF PERINGOME POLICE STATION, KANNUR AGAINST THE ORDER/JUDGMENT CRMC 224/2023 OF DISTRICT COURT & SESSIONS COURT,THALASSERY ``` ## **`PETITIONER/ACCUSED:`** ``` SUMA T.S AGED 45 YEARS WIFE OF VASUDEVAN N.P, KOOVAPPA, KUTTOOR P.O, PAYYANNUR TALUK, KANNUR-, PIN - 671315 ``` ``` BY ADVS. I.V.PRAMOD SAIRA SOURAJ P. ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ## `SR PUBLIC PROSECUTOR P SMT SEETHA S` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.2033 of 2023 2 ## **Dated this the 30[th ] day of January, 2024** ## **ORDER** 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 sole accused in Crime No.896/2022 of the Peringome Police Station, Kannur registered against her for allegedly committing the offences punishable under Sections 406, 420, 468 and 471 of the Indian Penal Code. 3. The gist of the prosecution case is that: the accused while serving as the Secretary of the Kuttur Ksheera Vyavasaya Sahakarana Sangam (‘Society’, in short) during the period from 10.8.2019 to 17.11.2021, had manipulated the Stock Register by tearing away its pages 93 to 127 and made alterations in the Stock Register, Day Book and Cash book and misappropriated an amount of B.A.No.2033 of 2023 3 Rs.11,36,992/- and, thus, causing a loss to the Society. Hence, the accused has committed the above offences. 4. Heard; Sri.I.V. Pramod, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor appearing for the respondent. 5. The learned counsel appearing for the petitioner vehemently argued that the petitioner is totally innocent of the accusation levelled against her. The petitioner has only obeyed the directions of her superiors and the Management. The petitioner has diligently worked in the Society. The petitioner is a lady. The crime has been registered pursuant to a private complaint that was filed by the Society after nearly a year, which by itself shows the falsity of the crime. At any rate, the petitioner’s custodial interrogation is not necessary. The petitioner is ready to co-operate with the investigation and abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. B.A.No.2033 of 2023 4 6. The learned Public Prosecutor strenuously opposed the application. She made available the case diary and also the bail objection report filed by the Investigating Officer. She contended that the investigation is only at its nascent stage. In the preliminary enquiry it was found that the petitioner had manipulated the Stock Register, Day Book and Cash Book for the purpose of destroying the evidence that was unveiled against her. The investigation has revealed that there is a widespread alterations and manipulations committed by the petitioner. The petitioner’s custodial interrogation is absolutely imperative. The recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the fair, full and proper investigation of the case. Hence, the application may be dismissed. 7. The Society has filed a private complaint before the jurisdictional Magistrate alleging that the petitioner had misappropriated an amount of Rs.11,36,992/- while she was B.A.No.2033 of 2023 5 working as its Secretary during the period from 10.8.2019 to 17.11.2021. The jurisdictional Magistrate forwarded the complaint to the police under Section 156 (3) of the Code of Criminal Procedure and the Investigating Officer has registered the above crime. The investigation is in progress. As per the materials available on record, it is revealed that prima facie there is widespread alterations and manipulations committed by the petitioner. 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 B.A.No.2033 of 2023 6 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; (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 B.A.No.2033 of 2023 7 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** **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 B.A.No.2033 of 2023 8 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 B.A.No.2033 of 2023 9 granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 11. After bestowing my anxious consideration to the materials placed on record, taking into account the nature, gravity, and seriousness of the offences alleged against the petitioner, that the investigation is only at its preliminary stage, the custodial interrogation of the petitioner is necessary and recovery is to be effected, I am of the definite view that the petitioner is not entitled to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code, especially after allegedly committing an economic offence. Therefore, 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, she shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender B.A.No.2033 of 2023 10 itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. 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 this case. SD/- ## **C.S.DIAS, JUDGE** rmm/30/1/2024