Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 25TH DAY OF JANUARY 2024 / 5TH MAGHA, 1945 CRIME NO.50/2022 OF VIDYA NAGAR POLICE STATION, KASARGOD PETITIONER/2ND ACCUSED: FEBIN P.N AGED 32 YEARS S/O PRAKASHAN, FORMER BANK MANAGER RESIDING AT FLORAL HOUSE, VADAKKUMBAD P.O THALASSERY TALUK, KANNUR, PIN - 670105 BY ADV PRAVEEN K. JOY RESPONDENT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA REP. BY STATION HOUSE OFFICER, VIDYA NAGAR POLICE STATION, KASARAGOD, PIN - 682031 BY ADV PUBLIC PROSECUTOR OTHER PRESENT: SR PP SMT NEEMA T V THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
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 accused No.2 in Crime
No.50/2022 of the Vidyanagar Police Station, Kasaragod District registered against the accused for allegedly committing the offences punishable under Sections 465, 468, 471, 420 and 409 of the Indian Penal Code, 1860, (‘IPC’, for short).
3. The gist of the prosecution case is that:- The 1 st
accused had secured a contract from the GCDA by furnishing a bank guarantee. The 2nd accused, who was working as a Manager of the bank, colluded with the 1 st accused and helped him to obtain the bank guarantee by forging the document. Thus, the accused have committed the above offences.
4. Heard; Sri.Praveen K. Joy, the learned counsel appearing for the petitioner and Smt.T.V.Neema, the learned Senior 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 had sanctioned the bank guarantee pursuant to the legal opinion given by him from the Head office. The petitioner is not a beneficiary. The transactions had occurred in the year 2017-18. But, the crime was registered only in the year 2021. The custodial interrogation of the petitioner is not necessary. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, an order of pre-arrest bail may be passed.
6. The learned Public Prosecutor vehemently
opposed the application. He submitted that the petitioner along with the 1st accused have committed grave financial offences. He further submitted that the investigation in the case has now been transferred to the Crime Branch, Kasaragod. The records of the bank have been manipulated. The custodial interrogation of the petitioner is necessary and the recovery is to be effected. 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 Cr PC 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;
(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 Cr PC 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. Likewise, in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 ] the Hon’ble Supreme Court has held as follows:
21. The High Court says in its fourth proposition that in
addition to the limitations mentioned in Section 437, the petitioner must make out a “special case” for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not “unguided or uncanalised”, the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special case” for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a “special case”. We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.
9. On an anxious consideration of the materials
placed on record, the rival submissions made across the bar, and taking into account the nature, gravity, and seriousness of the offence alleged against the petitioner, that the petitioner's custodial interrogation is necessary, that the recovery is to be effected and that the investigation is still in progress, I am of the definite view that the petitioner is not entitled 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. Consequently, the bail application is dismissed.
10. 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, untrammelled by any observations in this order, consider the bail application on its merits and as expeditiously as possible. If the petitioner does not 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 AS