W.A. No. 419 of 2016

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937 WA.No. 419 of 2016 () IN WP(C).38440/2015 ------------------------------------------- AGAINST THE ORDER IN WP(C) 38440/2015 of HIGH COURT OF KERALA DATED 25-02-2016 APPELLANTS/RESPONDENTS 8 & 9: --------------------------------------------------- 1. DR.A.C.VELAYUDHAN, - ALUNGAL HOUSE, PALLATH LANE, WEST POONKUNNAM.P.O, TRICHUR-680614. 2. V.G.SURESH, VADAKKOOT HOUSE, EZHUTHACHAN ROAD, ARIMPUR.P.O, TRICHUR-680620. BY ADVS.SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.R.V.SREEJITH RESPONDENTS/PETIIONER & RESPONDENTS 1 To 7 AND 10 TO 12: ---------------------------------------------------------------------------------------------- 1. SIVARAJAN.A.R, DIRECTOR, PUNARJINI SECURITIES PVT.LTD RESIDING AT ARUKETTY HOUSE, KUNDALIYOOR.P.O ENGANDIYOOR, CHAVAKKAD TALUK, TRICHUR DISTRICT-680616. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY DEPARTMENT HOME AFFAIRS, LEGISLATURE SECRETARIAT THIRUVANANTHAPURAM, THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031. 3. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM-695001. 4. THE CITY POLICE COMMISSIONER, TRICHUR-680604. 5. THE CIRCLE INSPECTOR OF POLICE, TRICHUR POLICE CIRCLE, TRICHUR-680604. 6. THE SUB INSPECTOR OF POLICE, TOWN EAST POLICE STATION, TRICHUR-680 601. WA.No. 419 of 2016 - 2 - 7. THE MINISTRY OF EXTERNAL AFFAIRS, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA NEW DELHI-110001. 8. THE CENTRAL BURAEU OF INVESTIGATION, REPRESENTED BY ITS DIRECTOR, NEW DELHI-110001. 9. NIKHIL.T.S, AMRUTHAM THAZHATHUVALAPPIL HOUSE, CHOORAKKATTUKARA.P.O AMALA NAGAR, TRICHUR-680614. 10. VISHNU PRASAD.K.N, KUNDUVALAPIL HOUSE, MANNAMPETTA, VATTANATHARA.P.O TRICHUR-680302. 11. ALINAVAS.P, FLAT NO.1, CYBER PARK, ENGINEERING COLLEGE POST TRICHUR-680614. R1 BY SRI.C.UNNIKRISHNAN (KOLLAM) R2-6 BY SR.GOVERNMENT PLEADER SRI. P.I. DAVIS R7 BY SRI.S.BIJU, CGC R8 BY SRI.P.CHANDRASEKHARA PILLAI, C.B.I. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. ASHOK BHUSHAN, CJ & A.M.SHAFFIQUE, J -------------------------------------------------------------- W.A. No. 419 of 2016 --------------------------------------------------------------Dated this the 1[st] day of March, 2016 ## J U D G M E N T ## Shaffique, J This appeal has been filed against order dated 25.2.2016 in W.P(C) No.38440 of 2015. 2. Respondents 8 and 9 in the writ petition are the appellants. This order came to be passed before issuing notice to appellants. Learned Single Judge having taken note of the allegations raised against respondents 8 and 9 had observed that since the allegations are very serious in nature the police shall take every endeavour to arrest the appellants for interrogation and continue investigation of the case. Direction was also issued to the State Police Chief to take note of these aspects and make immediate necessary arrangement for the arrest of appellants. It is impugning the aforesaid order, that this appeal has been filed. 3. Learned Senior counsel appearing for the appellants would submit that though anticipatory bail application has been rejected in an earlier occasion, appellants have filed Crl. 2 _**W.A.419/16**_ M.C. No.7698 of 2015 on 9.12.2015 seeking to quash the FIR registered under section 482 of the Criminal Procedure Code. That apart, the second appellant has filed another application under section 438 of Criminal Procedure Code as Bail Application No.1360 of 2016 and the same was admitted on 19.2.2016 and posted for hearing after two weeks. The first appellant has also filed Bail Application No.1427 of 2016 pointing out that the marriage of his son is scheduled on 28.2.2016. The Court passed an order on 23.2.2016 in which it is stated that the learned Public Prosecutor under took that appropriate instructions will be issued to the investigating officer, in both the crimes in which the first appellant was involved, that he shall not be arrested till 4.3.2016. By recording the said undertaking bail applications are posted for hearing on 4.3.2016. It is pointed out by learned counsel that by virtue of the judgment of Supreme Court in **M.C. Abrahan and Another v. State of Maharashtra [2003 SCC (Cri)]** and **Lalitha Kumari v. Government of Uttar Pradesh and Others [(2014) 2 SCC 1]** , the direction issued by the learned Single Judge for arresting the appellants was totally uncalled for and illegal. It is argued 3 _**W.A.419/16**_ that whether the accused be arrested or not is purely within the discretion of the investigating officer and no such direction ought to have been issued by the learned Single Judge and that too at the admission stage of the case, without notice to appellants. It is pointed out that such a direction will adversely affect the right of the appellant to get bail in the matter and further prosecuting their case. According to the appellants, their reputation also will be substantially damaged on account of the aforesaid direction. 4. On the other hand, learned counsel appearing on behalf of the writ petitioner, who is the first respondent herein submits that this direction came to be issued on the basis of statement filed by the fifth respondent, wherein at paragraph 7, it is stated as under : “It is respectfully submitted that during investigation of Crime No.1840/2015, it was revealed that the Proxies produced in the Extra Ordinary General Body Meeting of Punarjani Securities Ltd. were forged. Accused persons forged the seal of Indian Consulate, Dubai and signature of Vice Consul Sri. Nareshkumar. The involvement of the accused persons (R8 & R9) has been clearly established. As the accused persons (R8 & R9) are absconding, their arrest could not be effected. The source of preparing forged proxies, seal and signature of Indian Consulate, Dubai is to be found out and seized after the arrest of accused persons. The petition filed by the accused persons seeking anticipatory bail in the above case was dismissed by this Hon'ble Court vide order dated 20.11.2015 in B.A. No.5035/2015.” 4 _**W.A.419/16**_ 5. It is argued that the allegations are very serious in nature especially on account of forgery and fraudulent activities committed by the accused in the case wherein allegation is that the seal and signature of the officer of the Indian Consulate has been forged in a proxy document. It is argued that no attempts were made by respondent police authorities in proceeding with the investigation, which prompted the petitioner to approach this Court and sought for a direction to entrust the investigation of the crime to CBI. It is stated that an anticipatory bail application has already been rejected and police authorities are of the view that the appellants are absconding. There is nothing wrong in the learned Single Judge issuing such direction. 6. Learned Senior Government Pleader appearing on behalf of the State and Police Authorities supported the view taken in the matter and it is submitted that allegations are very serious in nature and therefore interrogation of the accused persons are necessary. 7. Having heard learned counsel on either side and having perused the records and after having referred to the judgments cited before us, we are of the view that 5 _**W.A.419/16**_ learned Single Judge had issued the said order only based on the statement filed by the fifth respondent in the matter. Learned Single Judge had not issued notice to respondents 8 and 9 and their contentions in the matter was not heard. 8. It is not in dispute that the arrest of the accused in a crime is purely within the discretion of the Investigating Officer concerned and it is always open for the Investigating Officer to take a decision as to arrest the accused or not. In so far as the present case also is concerned, it is within the realm of jurisdiction of the Investigating Officer to take such a decision, despite the direction issued by the learned Single Judge. Only after understanding the complicity of the accused in the offence that arrest has to be made as held by the Supreme Court in the judgments cited above. 9. However, learned Single Judge having issued the impugned direction only on the basis of statement filed by the 5[th] respondent, we do not think it necessary to interfere with the said order. We only clarify that this order shall not preclude the police authority to exercise their discretion in accordance with law and the impugned order shall not stand in the way of the petitioner prosecuting the bail application 6 _**W.A.419/16**_ and Crl. M.C. in accordance with law. With the above clarification the writ appeal is disposed of. Sd/ASHOK BHUSHAN CHIEF JUSTICE Sd/A.M.SHAFFIQUE, JUDGE sou.2/3. // True copy // P.A. To Judge