T.M. Haneefa v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 1492 OF 2024 ``` ``` CRIME NO.111/2024 OF Kanjirappally Police Station, Kottayam ``` ## **`PETITIONER/ACCUSED:`** ``` T.M.HANEEFA, AGED 73 YEARS S/O MUSTAFA RAWTHER, THADATHIL PARAMBIL ANAKKALLU P.O, KANJIRAPPALLY-686506 ``` ``` BY ADVS. S.MANU K.S.PRENJITH KUMAR JISMIN JOSE BEA MARY BENNY ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, KANJIRAPPALLY POLICE STATION, KOTTAYAM., PIN - 686555 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1492 of 2024 ## -:2:- Dated this the 8[th] day of April, 2024 ## **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.111/2024 of the Kanjirappally Police Station, Kottayam, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 406, 409 and 420 r/w Section 34 of the Indian Penal Code, 1860. 3. The crux of the prosecution case is that: the accused, in furtherance of their common intention, misappropriated an amount of Rs.29,25,000/- of the depositors of the Parathodu Agricultural Co-operative Improvement Society (for short ‘the Society’) and ## B.A.No.1492 of 2024 ## -:3:- cheated the depositors. Thus, the accused have committed the above offences. 4. Heard; Sri.K.S.Prenjith Kumar, the learned counsel appearing for the petitioner and Smt. Seetha.S, the learned Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner is the third accused in the above crime, and he is the Secretary of the society. The entire affairs of the society were conducted by the first accused, who is the qualified attender of the society. It was the first accused who misappropriated the money of the depositors, and, thereafter, went missing. Subsequently, after the first accused appeared, she gave a statement to the police as well as the B.A.No.1492 of 2024 -:4:- Jurisdictional Magistrate that it was she who had misappropriated the money. The petitioner has no role in the administration and management of the day-today affairs of the company. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the accused 2 and 3 were in charge of the management and administration of the society. The bank accounts of the society have been operated by accused 2 and 3. It is only with their knowledge that the amounts have been misappropriated. The petitioner’s custodial interrogation is necessary, and recovery is to be effected. Although the Investigating Officer conducted B.A.No.1492 of 2024 -:5:- a search of the office of the society, the ledger book, the day book, the FD law register, the FD register, the passbooks of the society, and the KYC details have not been recovered. All the said documents are in the possession of the accused. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Even though the Court of Session, by Annexure A9 order, had permitted the petitioner to surrender before the Jurisdictional Magistrate, he has not availed the opportunity. The application is devoid of any merit and is only to be dismissed. 7. The prosecution allegation against the accused is that they, in furtherance of their common intention, had misappropriated the deposits of the society and caused the depositors a loss of Rs.29,59,000/-. 8. The petitioner's contention is that the entire B.A.No.1492 of 2024 -:6:- affairs of the society were being managed by the first accused, who is the qualified attender. The accused, who is a retired police officer, a public servant, and a social worker, has no active role in the society. The petitioner's involvement in the society is minimal. Therefore, the custodial interrogation of the petitioner is not necessary, and no recovery is to be effected. 9. The petitioner had moved the Court of Session, Kottayam, under Section 438 of the Code by filing Crl.M.P.No.380/2024. By Annexure A9 order, the learned Sessions Judge dismissed the application on the ground that the petitioner's custodial interrogation is and is to be necessary recovery effected. Nonetheless, the petitioner was permitted to surrender before the Investigating Officer on or before 20.02.2024. 10. Recently, in **Srikant Upadhyay v. State of** B.A.No.1492 of 2024 -:7:- **Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx xxxx xxx 10. xxx xxx xxx xxx xxx xxx xxx xxx xxx 24.We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that -:8:- ## B.A.No.1492 of 2024 anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. ….. …...” ## 11. In **Jai Prakash Singh v. State of Bihar and** **Anr.** [(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 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 B.A.No.1492 of 2024 -:9:- facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and to misuse his liberty. 12. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioner was the Secretary of the society, that he, along with accused 2 and 3, were operating the bank accounts of the society, that the investigation in the case is in a preliminary stage, that the petitioner’s custodial interrogation is necessary, and that the recovery is to be effected, I am not convinced that the petitioner has made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail B.A.No.1492 of 2024 ## -:10:- application is dismissed. 13. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall consider the bail application on its merits. If the petitioner fails to 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** mtk/08.04.24 -:11:- ## B.A.No.1492 of 2024 ## **`APPENDIX OF BAIL APPL. 1492/2024`** ``` PETITIONER ANNEXURES Annexure A1THE CERTIFIED COPY OF THE FIR IN CRIME NO. 111/2024 OF KANJIRAPALLLY POLICE STATION, KOTTAYAM ``` ``` Annexure A2THE CERTIFIED COPY OF THE STATEMENT GIVEN BY THE DEFACTO COMPLAINANT BEFORE THE SHO, KANJIRAPPALLY POLICE STATION Annexure A3A TRUE COPY OF THE STATEMENT GIVEN BY THE HUSBAND OF THE 1ST ACCUSED BEFORE THE SHO KANJIRAPPALLY POLICE STATION Annexure A4THE CERTIFIED COPY OF THE FIR NO. 108/2024DATED29.01.2024OF KANJIRAPALLY POLICE STATION Annexure A5A TRUE COPY OF PETITION DATED 30.01.2024 SUBMITTED BY THE 2ND ACCUSED Annexure A6A TRUE COPY OF THE STATEMENT DATED 31.01.2024 GIVEN BY THE 1ST ACCUSED BEFORE THE SHO, KANHIRAPALLY Annexure A7A TRUE COPY OF THE STATEMENT OF THE 1ST ACCUSED RECORDED BY THE MAGISTRATE Annexure 7(a)A TRUE COPY OF THE READABLE COPY OF ANNEXURE A7 Annexure 8COPIES OF MEDICAL RECORDS SHOWING SERIOUS HEALTH ISSUES OF THE PETITIONER Annexure 9THE CERTIFIED COPY OF ORDER DATED 14.02.2024 IN CRL.M.P.NO. 380/2024 OF THE HON'BLE SESSIONS CURT , KOTTAYAM ```