Usha P. v. State of Kerala and Sreejesh (Addl.R2)

## **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. 10455 OF 2023** **CRIME NO.938/2023 OF MANKARA POLICE STATION, PALAKKAD** **AGAINST THE ORDER/JUDGMENT CRMC 5221/2023 OF DISTRICT COURT & SESSIONS** ## **COURT, PALAKKAD** ## **PETITIONER/ACCUSED NO.2:** **USHA.P, AGED 49 YEARS W/O.SETHUMADHAVAN, SWATHI, MUDAPPALLUR.P.O, VANDAZHY, ALATHUR, PALAKKAD, PIN - 678705** ## **BY ADV V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENTS/COMPLAINANT/STATE:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 SREEJESH AGED 39 YEARS S/O.GANGADHARAN, KAVUNGAL, THENUR, PARALI, PALAKKAD - 678612, IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 11/12/2023 IN CRL. MA.1/2023.** **BY ADV NO ADVOCATE** ## **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:** **BAIL APPL. NO.10455 OF 2023** **2** ## **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 petitioner is the second accused in Crime No.938/2023 of the Mankara Police Station, Palakkad, registered against the accused (3 in number) for allegedly committing the offences punishable under Section 420 r/w. 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: the accused 1 to 3 had promised the defacto complainant an employment in the Kerala Warehousing Corporation and received an amount of Rs.7,20,000/- in five instalments between 07.12.2019 and 24.08.2023. However, the accused did not provide the assured employment or return the said money. Thus, the accused has committed the above offences. 4. Heard; Sri.V.A.Johnson, the learned counsel **BAIL APPL. NO.10455 OF 2023** **3** appearing for the petitioner and Smt. Neema T.V., the learned Senior Public Prosecutor appearing for the respondent. 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. Even if the allegations in the Annexure 1 FIR are taken on its face value, the same will not attract an offence under Section 420 IPC. He submitted that the petitioner is a lady and has a child who is having 75% permanent disability. At any rate, the custodial interrogation of the petitioner is not necessary and no recovery is to be effected. He relied on the decisions of the Patna High Court in **Santhosh Kumar Trivedi v. State of Bihar and Anr.** [2019 KHC 3701] and Jharkhand High Court in **Jadhunandan Rai and Anr. v. State of Jharkhand and Anr.** [2009 KHC 110] to fortify his contention that an assurance to secure a public employment will not attract an offence under Section 420 IPC. He therefore prayed that the **BAIL APPL. NO.10455 OF 2023** **4** petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She contended that, it was the petitioner who was the link between the first accused and the third accused. The defacto complainant had contacted the petitioner to secure the employment. It was the petitioner who instructed the defacto complainant to pay the money to the third accused to secure the employment. Consequently, the defacto complainant paid an amount of Rs.7,20,000/- to the bank account of the third accused. However, the accused did not secure the employment as assured by them. The Public Prosecutor submitted that the petitioner's custodial interrogation is necessary, and recovery is to be effected. Moreover, the investigation is only at a preliminary stage. If the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Hence, the application may be dismissed. 7. The gist of the prosecution allegation is that the accused 1 to 3, in furtherance of their common intention, had **BAIL APPL. NO.10455 OF 2023** **5** cheated the defacto complainant by assuring him that they secure an employment as a manager in the Kerala Warehousing Corporation. Consequently, they received an amount of Rs.7,20,000/- from the defacto complainant. But they did not secure the employment or return the money. 8. The petitioner had filed Crl.M.C.No.5221/2023 before the Court of Session, Palakkad for a similar relief. The learned Sessions Judge, by Annexure 4 order, dismissed the application on the finding that the petitioner was the master brain of the crime. Furthermore, the petitioner's custodial interrogation was necessary and recovery had to be effected. 9. In S **iddharam 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 **BAIL APPL. NO.10455 OF 2023** **6** 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 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; **BAIL APPL. NO.10455 OF 2023** **7** (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. 10. 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 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 accusations levelled against the applicant is only to enrope him in the crime and would misuse his liberty. 11. On an anxious consideration of the facts, the **BAIL APPL. NO.10455 OF 2023** **8** materials placed on record, the rival submissions made across the Bar and on comprehending the seriousness, gravity, and nature of the accusations levelled against the petitioner, I am prima facie satisfied that the offence under Section 420 IPC is attracted. Also, since the petitioner's custodial interrogation is necessary and recovery is to be effected, I am convinced that the petitioner has not made out exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the 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. 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 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. If the petitioner does not surrender before the Investigating Officer **BAIL APPL. NO.10455 OF 2023** **9** 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** **shg**