Sushama Kumari L.S. v. State of Kerala and Sub Inspector of Police, Museum Police Station, Thiruvananthapuram

1 BA No. 380 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 BAIL APPL. NO. 380 OF 2024 ``` ## **`CRIME NO.1646/2023 OF Museum Police Station, Thiruvananthapuram PETITIONER/S:`** ``` SUSHAMA KUMARI L.S., AGED 54 YEARS RESIDING AT SUSHASREE ARANGAL, VENPAKAL P.O, ATHIYANNUR THIRUVANANTHAPURAM, PIN - 695123 BY ADVS. S.JATHIN DAS SUMODH MADHAVAN NAIR S.SOUMYA ISSAC ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2SUB INSPECTOR OF POLICE, MUSEUM POLICE STATION, THIRUVANANTHAPURAM DISTRICT, PIN - 695033 ``` ## **`OTHER PRESENT:`** ``` SRI.C.S HRITHWIK, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No. 380 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.380 of 2024** ## **-----------------------------------** ## **Dated this the 14[th] day of February, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.1646/2023 of the Museum Police Station, Thiruvananthapuram, registered against the accused (two in number), for allegedly committing the offences punishable under Sections 403, 406, 409, 420 and 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: the accused with an intention of embezzling an amount of Rs.10,00,000/sanctioned for conducting a training programme at SAMETI 3 BA No. 380 of 2024 Training Centre under the Department of Agricultural Development and Farmers’ Welfare , transferred the amount to the bank account of the second accused on 29.5.2020, instead of transferring it to the account of the Director of the SAMETI. The second accused has received the said amount and refused to return the amount to the defacto complainant. The accused have caused unjust loss to the Government and have got unjust gain. Thus, the accused have committed the above offences. 4. Heard Sri.S.Jathin Das, the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, the learned Public Prosecutor. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. She has been falsely implicated in the crime. The petitioner has been working as a Senior Accounts Officer in the Directorate of Agriculture for 4 BA No. 380 of 2024 the last 25 years with an unblemished record. It was the cheque processing section of the department which wrongly entered the name of the second accused and submitted the bill to the treasury. It is only in discharge of the petitioner’s official functions that she approved the bill. The petitioner has no complicity in the matter. The petitioner has no criminal antecedents. She is a law abiding citizen. The petitioner is willing to co-operate with the investigation. The petitioner is also a cancer patient and is undergoing treatment at the Regional Cancer Centre, Thiruvananthapuram. Hence, the petitioner may be released on bail. 6. The Investigating Officer has filed an affidavit dated 2.2.2024, inter alia, stating that in the investigation it has been revealed that the bill was processed by a Senior Clerk and verified by a Junior Superintendent and, thereafter, finally approved by the petitioner. The approval was made through a 5 BA No. 380 of 2024 software and physical copy was signed by the petitioner. Since the bill was passed in the treasury on 19.1.2018 and the account of SAMETI was closed earlier, the amount was returned to the suspense account in the said office. The money was transferred to the bank account of the second accused after a lapse of twenty months. The money which comes to the suspense account can be transferred directly to another account by the DDO. During the relevant point of time, the petitioner was the DDO. Even though the amount was transferred to the account of the second accused, and repeated requests were made to her to return the money, she has not done the same. The Investigation is at its initial stage. Further evidence has to be collected. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence the application may be dismissed. 6 BA No. 380 of 2024 ## 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. **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 7 BA No. 380 of 2024 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. ## 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 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 8 BA No. 380 of 2024 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. ## 9. In _**P. Chidambaram v. Directorate of Enforcement [**_ **(2019)** ## **9 SCC 24]** the Hon’ble Supreme Court has held 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. 10. In the case on hand, it is quite evident that it was during the tenure of the petitioner that an amount of Rs.10/Lakh was transferred to the bank account of the second accused. As pointed out by the Investigating Officer, even though the bill was passed in the treasury on 19.1.2018, since 9 BA No. 380 of 2024 the account of the SAMETI was closed, the money was returned back to the suspense account of the department. However, the petitioner exercising her powers as DDO has transferred the money to the bank account of the second accused. Therefore, the contentions that have been put forth by the petitioner prima facie does not inspire confidence of this Court. 11. On a consideration of the facts, materials placed on record, the rival submissions made across the Bar, and on comprehending the nature, seriousness and gravity of the economic offence alleged against the petitioner and the second accused, that the investigation in the case is at the 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 ground to invoke the extra ordinary jurisdiction of this Court under 10 BA No. 380 of 2024 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/- sks/14.2.2024 **C.S.DIAS, JUDGE**