Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 22ND DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 BAIL APPL. NO. 2116 OF 2024 CRIME NO.146/2024 OF FEROKE POLICE STATION, KOZHIKODE PETITIONER: ABDUL MUNEER AGED 38 YEARS THARAMANNIL PADINJARAYIL HOUSE, MANJERI P.O, MALAPPURAM DISTRICT, PIN - 676121 BY ADVS. DEEPAK MOHAN ARUN ANTONY (K/1053/2011) RESPONDENT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV SMT. NEEMA T. V. - SENIOR PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.S.DIAS, J.
-------------------------------------------------------- B.A. No. 2116 OF 2024 ------------------------------------------------------- Dated this the 22nd day of March, 2024
ORDER
The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail.
2. The petitioner is presently the first accused in Crime No.146/2024 of the Feroke Police Station, Kozhikode, registered against the accused (two in number) for allegedly committing the offences punishable under Sections 420, 463, 464, 468 and 471 read with Section 34 of the Indian Penal Code.
3. The essence of the prosecution case is that: the second accused had availed a loan from the Indian Bank, Ramanattukara Branch, Kozhikode for
Rs.1,04,31,000/- by producing the forged title deeds of the property belonging to the first accused as a collateral security. It is only when the accused failed to repay the installments, the bank realised that the title deeds of the property created as equitable mortgage is forged. Thus, the accused have committed the above offences.
4. Heard; Sri. Deepak Mohan the learned counsel appearing for the petitioner and Smt. Neema T. V., the learned Public Prosecutor.
5. The learned counsel for the petitioner
submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime. It was the second accused, who availed the loan from the bank. The petitioner was only a guarantor. The petitioner had bonafide produced the title deeds of his property. Annexure A1 document would show that there is no mortgage over the property. The second accused has been granted an order of pre-arrest bail by the Court of Session, Kozhikode, as per Annexure A4 order in Crl.M.C. No.318/2024. The petitioner is at par with the said accused. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed.
6. The learned Public Prosecutor seriously opposed the application. She submitted that, it was the petitioner who produced the forged title deeds of his
property. The said property was mortgaged on multiple occasions with different financial institutions. Therefore, the petitioner had the mens rea at the time of creating of the equitable mortgage. The petitioner’s application for pre-arrest bail has been dismissed by the learned Sessions Judge as per Annexure A2 order. The petitioner’s custodial interrogation is necessary
and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, it would torpedo the investigation. Hence, the application may be dismissed.
7. The prosecution allegation is that, the accused
1 and 2, in furtherance of their common intention, to cheat and defraud the defacto complainant, the first accused had created an equitable mortgage by deposit of title deeds of the property which was already mortgaged multiple times with other financial institutions. It is without revealing the said aspect that the mortgage was created with the defacto complainant.
8. Recently, in Srikant Upadhyay v. State of Bihar [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines:
“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, Cr PC 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 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 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. xxx xxx xxx”.
9. 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 accusation levelled against the applicant is only to enrope him in the crime and would misuse his liberty.
10. On an anxious consideration of the facts, the rival submissions made across the Bar and the
materials placed on record, especially on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, that the specific finding of the learned Sessions Judge in Annexure A2 order, that the petitioner’s custodial interrogation is necessary and the recovery is to be effected, I am convinced that the petitioner has not made out any 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. Resultantly, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within ten 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 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 BR APPENDIX OF BAIL APPL. 2116/2024 PETITIONER’S ANNEXURES Annexure A-1 THE COMPUTER PRINTOUT REGARDING THE EXECUTION OF THE DOCUMENT NO.278/2018 IN FAVOUR OF THE PETITIONER, OBTAINED FROM THE WEBSITE OF KERALA REGISTRATION DEPARTMENT
Annexure A-2 TRUE COPY OF THE ORDER DATED 02.03.2024 IN CRL.MC NO.292/2024 OF THE SESSIONS COURT, KOZHIKODE Annexure A-3 TRUE COPY OF THE TREATMENT RECEIPT DATED 27.11.2023 ISSUED FROM IDEAL HEALTHCARE, MAJERI, MALAPPURAM DISTRICT Annexure A4 TRUE COPY OF THE JUDGMENT DATED 12.03.2024 IN CRL.MC NO.318/2024 OF THE SESSIONS COURT, KOZHIKODE RESPONDENT’S ANNEXURES: NIL