Swaroop and Vijeesh v. State of Kerala

Bail Application No.559 of 2024 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 BAIL APPL. NO. 559 OF 2024** **CRIME NO.53/2024 OF Chittur Police Station, Palakkad PETITIONERS:** 1 SWAROOP AGED 29 YEARS, S/O SOMANATHAN KUTTRAMKUNNAM, KUNNEKKAD,PERUVAMB.P.O, PALAKKAD, PIN – 678531. 2 VIJEESH AGED 33 YEARS S/O VASU, KOTHAMBATH HOUSE, MOOLCKUTHALA.P.O, CHANGARAMKULAM,MALAPPURAM, PIN – 679574. BY ADV AYSHA YOUSEFF ## **RESPONDENTS/STATE & DE FACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. ERNAKULAM, PIN – 682031. 2 STATION HOUSE OFFICER CHITTOOR POLICE STATION, PALAKKAD., PIN - 517002 3 MUKESH AGED 35 YEARS S/O SUBRAMANIAN, KRISHNA NIVAS, KALLAI KULAMB, NALLEPPILLY, CHITTOOR, PALAKKAD, KERALA., PIN – 678553. ## **OTHER PRESENT:** SR.P.P C.S.HRITHWIK **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 6.02.2024, THE COURT ON 09.02.2024 PASSED THE FOLLOWING:** Bail Application No.559 of 2024 2 ## **C.S.DIAS,J** ## **====================== Bail Application No.559 of 2024** **----------------------------------Dated this the 9[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 2 and 3 in Crime No.53/2024 of the Chittur Police Station, registered against them for allegedly committing the offences punishable under Sections 406, 420 r/w 34 of the Indian Penal Code and Sections 3,4,5 and 6 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 (in short ' PCMCS Act'). 3. The gist of the prosecution case is that: the accused fully knowing that they have no any sanction or permission to collect money from the public as Bail Application No.559 of 2024 3 investment, projected themselves as promoters of an online project named 'Meta Force', and made the public believe that they would give 200% profit on the investment made in the project, organised classes and programmes in various hotels in Palakkad to promote the project, and they made the de-facto complainant to transfer Rs.4,90,000/- and Rs.98,000/- to the first accused through UPI transactions and transfer Rs.8250/and Rs,9000/- to the bank account of the accused 2 and 3 in the Federal Bank and Rs.35,000/- to the Paytm Business Account of Mohandas. However, the accused failed to pay any profits or return the amount. Thus, the accused have misappropriated Rs.1,50,250/- and, thereby, committed the above offences. 4. Heard; Sri.Mohammed Youseff, the learned Senior Counsel appearing for the petitioners and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. The learned Senior Counsel strenuously argued that the petitioners are totally innocent of the accusations levelled against them. The allegations in Bail Application No.559 of 2024 4 Annexure-I F.I.R even if taken on their face value do not constitute the offences alleged against the petitioners. The petitioners have not committed the above offences. Actually, the 3[rd] respondent was the Palakkad District Team Leader of Paytm online payment service provider and the first petitioner was working as its Sales Executive. The third respondent had created certain problems and made an attempt to prevent the first petitioner's promotion as the group leader. At that point of time, the first petitioner had submitted a complaint to the higher-ups against the 3[rd] respondent and the first petitioner was promoted as Senior Group Leader. It is out of the said grudge, that the 3[rd] respondent gave a false complaint to the 2[nd] respondent against the petitioners. Non bailable offences have been deliberately incorporated to arrest the petitioner. The petitioners' custodial interrogation is not necessary. Annexure 1 FIR is a sheer abuse of process of the law. The petitioners have no criminal antecedents. The sole objective in registering the crime is only to harass and humiliate the Bail Application No.559 of 2024 5 petitioners. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the accused have cheated the de-facto complainant Rs.1,50,250/-, by using the name and website of an online trading company named 'Meta Force' and by promising him profit by investing in crypto currency. The accused had stated that an application would be installed on the mobile phone of the depositor for doing online trading by using the link sent by the accused. Once the currency is purchased, the deposited money would be transferred to the mobile application of Meta Force. Then, the entire amount will be deposited in the accounts of the upper echelons of the money chain. The accused 1 to 3 have worked as the promoters of the company. The accused have made the de-facto complainant to deposit the money through UPI and bank transactions. The accused have looted money from depositors by making false promises. The investigation is in the preliminary 6 Bail Application No.559 of 2024 stage. The call details and the bank transactions of the accused have to be received. The offences are grave in nature. The accused have cheated several investors to the tune of Rs.28/- lakh. If the petitioners are granted an order of pre-arrest bail, it would hamper 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. **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 Bail Application No.559 of 2024 7 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, 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 Bail Application No.559 of 2024 8 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 selfimposed 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 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. 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 Bail Application No.559 of 2024 9 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. The learned Senior Counsel submitted that even if the allegations in the FIR are taken on its face value, it would not constitute the offence, and there are no incriminating materials to establish the complicity of the petitioners in the crime. On the contrary, the learned Public Prosecutor submitted that the investigation is only at its nascent stage. The first accused has been arrested and there are sufficient materials to prima facie establish that the petitioners are also involved in the crime. The petitioners custodial interrogation is necessary and recoveries have to be effected. He also said that there is another crime registered against the accused and the preliminary investigation reveals that many depositors have been cheated by the accused. Bail Application No.559 of 2024 10 11. It is well settled that at the stage of granting bail, the courts are not excepted to elaborately examine the materials touching on merits of the case, which may ultimately prejudice the accused. But, the courts are only excepted to indicate in the orders the reasons for prima facie concluding as to why bail was granted or rejected. 12. In the case on hand, the bail objection report and the FIR prima facie reveal that the accused have committed the offences alleged against them. As the investigation is in progress and the custodial interrogation of the petitioners is necessary for the proper and full investigation of the case, I am not inclined to exercise the discretionary powers of this Court under Section 438 of the Code. 13. 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 offences alleged against the petitioners, that the investigation in the case is at the 11 Bail Application No.559 of 2024 preliminary stage, that the petitioners' custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the petitioners have 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** rkc/ma/9.2.2024 Bail Application No.559 of 2024 12 ## **APPENDIX OF BAIL APPL. 559/2024** PETITIONER ANNEXURES Annexure 1 COPY OF THE FIR NO. 53/2024 DATED 15.1.2024 Annexure 2 COPY OF THE RESIGNATION LETTER DATED 25.4.2023 Annexure 3 THE TRANSACTION HISTORY OF THE 3RD RESPONDENT FROM HIS METAFORCE WALLET