Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 30TH DAY OF JANUARY 2024 / 10TH MAGHA, 1945 CRIME NO.437/2022 OF Kakkur Police Station, Kozhikode AGAINST THE ORDER/JUDGMENT CRMC 1406/2023 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE PETITIONER/S: BINDU.N AGED 52 YEARS , W/O LATE KRISHNADASN, 5/636 JAYAKRISHNA HOUSE, CHERUKUDYAPARAMBA, RARICHAN ROAD, ERANJIPPALAM P.O., KOZHIKODE -, PIN - 673006 BY ADV GOKUL D. SUDHAKARAN RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER, KAKKOOR POLICE STATION, KOZHIKODE, PIN - 673613 SR.PP.SMT.SEETHA S. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2024, 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 3rd accused in Crime
No.437/2022 of the Kakkur Police Station, Kozhikode, registered against the accused for allegedly committing the offences punishable under Sections 406, 409, 420, 468, 471 read with Sec.34 of the Indian Penal Code, 1860, (‘IPC’, for short).
3. The gist of the prosecution case is that: the
accused 1 to 4 and other office bearers of the Kozhikode District Labour Social Welfare Co-operative Society, during the period from 16.12.2015 to 15.12.2020 fabricated documents, and caused loss to the Society to the tune of Rs.3/- crore. The 3 rd accused who was working as an Appraiser had withdrawn Rs.11/- lakh from the fixed deposit of Bobichan, his wife Jiji Bobichan and their children without their knowledge. Thereafter, she continued to pay interest to the depositors through the account of her and her son. Thus, the accused have committed the above offences.
4. Heard; Sri. Gokul D.Sudhakaran, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.
5. The learned counsel for the petitioner submitted
that the petitioner is totally innocent of the accusations leveled against her. The petitioner was only employed as a Gold Appraiser. Even going by the prosecution case, the misappropriation took place during the period from 16.05.2015 to 15.12.2020. The petitioner joined the services of the Society only in the year 2018. Therefore,
by no stretch of imagination, can the petitioner be held
liable to have committed the offences as alleged by the prosecution. The petitioner is a cancer patient. The petitioner is willing to co-operate with the investigation and abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed.
6. The learned Public Prosecutor strenuously
opposed the application. She contended that the accused 1 to 4 have committed a grave economic offence. The petitioner, who was working as a Gold Appraiser, had fraudulently withdrawn Rs.11/- lakh from the fixed deposits of two depositors and their children. In order to conceal the withdrawal, she continued to pay interest to the depositors through her account. The petitioner's custodial interrogation is necessary and the recovery is to be effected. The investigation is only at its nascent stage. If the petitioner is let off on bail, it would hamper with 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 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. 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. 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 Cr PC is an extraordinary power and the same has to 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. After bestowing my anxious consideration to
the materials placed on record, particularly taking note of the specific overt act alleged against the petitioner that she had fraudulently withdrawn an amount of Rs.11/- lakh from the fixed deposits of the depositors of the society, that the custodial interrogation of the petitioner is necessary and that the recovery is to be effected, I am of the definite view that the petitioner has not made out 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. 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 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 rkc/30.01.24 APPENDIX OF BAIL APPL. 8614/2023 PETITIONER ANNEXURES Annexure -I . TRUE COPY OF THE F.I.R IN CRIME
NO.437/2022 OF KAKKOOR POLICE STATION DATED 22-12-2022 ALONG WITH COMPLAINT OF THE DEFACTO COMPLAINAN Annexure 2 TRUE COPY OF THE ENQUIRY REPORT NO.F3619/2021 OF THE ASSISTANT REGISTRAR (GENERAL), KOZHOKIDE DATED 10-01-2022 Annexure -III FAIR COPY OF THE ORDER OF THE COURT OF SESSION, KOZHIKODE DIVISION IN CRIMINAL MISCELLANEOUS CASE NO.1406/2023 IN CRIME NO.437/2022 DATED 16-8-2023 OF KAKKOOR POLICE STATION
Annexure -IV TRUE COPY OF THE DISCHARGE SUMMARY
ISSUED FROM MVR CANCER CENTER DATED 9-7-