Ismail Chakkarath vs State Of Kerala
2023 Latest Caselaw 9282 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
           Friday, the 25th day of August 2023 / 3rd Bhadra, 1945
             CRL.M.APPL.NO.2/2023 IN BAIL APPL. NO. 510 OF 2023
           CRIME NO.25/2023 OF KOLAVALLUR POLICE STATION, KANNUR
PETITIONER/2ND ADDITIONAL RESPONDENT:

     JOLLY MALAYIL (SOUGHT TO BE IMPLEADED), M/S. NEIL DEBT COLLECTIONS,
     55/520-C, NANDANAM, 2ND FLOOR, THOUNDAYL ROAD, PANAMPILLY NAGAR,
     COCHIN (SOUGHT TO BE IMPLEADED)

RESPONDENT/PETITIONER/RESPONDENT:

  1. ISMAIL CHAKKARATH, AGED 51 YEARS, S/O. PACKARAN HAJI, CHAKKARATH
     P.O, KUNNOTH PARAMBA PANCHAYATH, KOLAVALLUR AMSOM DESOM, THALASSERY
     TALUK,KANNUR, PIN-670693
  2. STATE OF KERALA, REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF
     KERALA, KOCHIN, PIN-682031
  3. THE DYSP (SOUGHT TO BE IMPLEADED), CRIME BRANCH EOW, KANNUR AND
     KASARGODE (SOUGHT TO BE IMPLEADED)

     Petition praying that in the circumstances stated therein the High
Court be pleased to recall the order dated 08.06.2023 in the above
application for anticipatory bail in the interest of justice
     This petition coming on for orders upon perusing the application and
upon hearing the arguments of M/S. K. R. SUNIL, SAJEENA ABDU T.K. &
REVATHI P.M., Advocates for the petitioner, M/S. JOSEPH KODIANTHARA (SR.)
& SHARAN SHAHIER, Advocates for R1 and PUBLIC PROSECUTOR for R2 & R3, the
court passed the following:
                    BECHU KURIAN THOMAS, J.
                   =-=-=-=-=-=-=-=-=-=-=-=-=
                       Crl.M.A.No.2 of 2023
                                 in
                        B.A.No.510 of 2023
                    -=-=-=-=-=-=-=-=-=-=-=-=
              Dated this the 25th day of August, 2023


                                ORDER

This is an application filed under Section 482 of the Code of

Criminal Procedure, 1973 (for short, 'the Code'), seeking to recall the

order dated 08.06.2023 granting anticipatory bail to the accused in

Crime No.25 of 2023 of Kolavallur Police Station, Kannur.

2. The applicant who seeks to recall the bail order is the

defacto complainant in Crime No.25 of 2023 of Kolavallur Police

Station, Kannur. It is alleged in the application that the accused in the

said crime had obtained an order of anticipatory bail from this Court in

B.A.No.510 of 2023 suppressing material facts and the Investigating

Officer in the said crime also did not bring it to the notice of the

learned Public Prosecutor as well as the Court, the significant

circumstances arising in the case and hence bail was obtained by

suppression requiring recall of the order granting bail.

3. The applicant alleges that on 12.01.2023, a crime was

registered at Kolavallur Police Station alleging that the accused was

conducting a business establishment by name 'Grand Mart Trading

Company' at Doha in Qatar and in order to develop the business of the Crl.M.A.No.2 of 2023 in B.A.No.510 of 2023

said establishment, he approached the United Bank Ltd. of Qatar on

14.03.2017 and obtained Qatar Riyals equivalent to 61 Crores of

Indian Rupees and without utilising the said amount for the business

purposes diverted the money for his personal use and committed

criminal breach of trust and cheating.

4. According to the applicant, the accused had in the bail

application suppressed material facts including the fact that he was

the Managing Director of the business establishment and had

absconded from Qatar after a red corner notice was issued against

him for having cheated the Bank of more than Rs. 61 Crores. It was

contended that the accused had even sold the business establishment

at Qatar contrary to the terms of the loan, to his cousin brother,

without paying any amount and fled to India to overawe the law. On

realising the fraudulent conduct of the accused, the United Bank of

Qatar initiated proceedings at Qatar and filed a complaint through an

authorised person at Kannur, Kerala as FIR No.25 of 2023 of Kolavallur

Police Station. Thereafter, the State Police Chief directed the case to

be handed over to the Crime Branch by its order dated 27.03.2023.

The Crime Branch re-registered the crime as FIR No.976 of 2023 and

commenced investigation on 11.04.2023. The entire files were taken

over by the Crime Branch. However, curiously the Investigating

Officer in Crime No.25 of 2023 of Kolavallur Police Station did not Crl.M.A.No.2 of 2023 in B.A.No.510 of 2023

inform the above stated circumstances to the learned Public

Prosecutor and in turn to the Court.

5. Without being apprised of the seriousness of the crime

alleged against the petitioner and without being informed of the

transfer of investigation to the Crime Branch, this Court directed the

petitioner to appear before the Investigating Officer on 21.06.2023

and 22.06.2023 from 9.00 a.m.to 5.00 p.m. to subject himself to

interrogation and thereafter directed his release on bail in the event of

his arrest.

6. According to Adv.K.R.Sunil, pursuant to the order in

B.A.No.510 of 2023, the accused appeared before the Station House

Officer of Kolavallur Police Station who interrogated him and released

him in compliance with the order of this Court. The fact that the

Station House Officer of Kolavallur Police Station did not have any

jurisdiction to investigate into the crime after 11.04.2023, was not

brought to the notice of the court. Further, the Investigating Officer

instead of informing this Court of the change in circumstances,

continued to act as such and even interrogated the accused.

According to the learned counsel, the circumstances reveal that bail

was obtained by suppressing material facts and therefore the order

granting anticipatory bail is required to be recalled.

7. Sri.Joseph Kodiyanthara, the learned Senior Counsel Crl.M.A.No.2 of 2023 in B.A.No.510 of 2023

instructed by Sri. Sharan Shahier, the learned counsel for the

petitioner on the other hand contended that even before the case was

handed over to the Crime Branch, the bail application was filed and

therefore there was no suppression. It was further submitted that the

Crime Branch as well as the SHO of Kolavallur Police Station had

already interrogated the petitioner and no purpose would be achieved

by recalling the order granting anticipatory bail. It was further

submitted that the accused had not suppressed any material facts

warranting a recall of the bail order and also that the mistake of the

Investigating Officer ought not to be burdened upon the petitioner and

hence he sought for dismissal of the application to recall the order.

8. Sri.K.A.Noushad, the learned Public Prosecutor, on the other

hand submitted that the instructions on the basis of which the learned

Public Prosecutor had submitted in court, earlier were those that were

given prior to the handing over of the case to the Crime Branch and

therefore, the learned Public Prosecutor, not having been informed of

the change could not have brought it to the notice of this court.

9. I have considered the rival contentions.

10. If a judgment or an order has been obtained by suppression

or an abuse of the process of court, inherent powers can be exercised

to recall such judgment. In this context, reference to the decision in

State of Punjab v. Davinder Pal Singh Bhullar and Others Crl.M.A.No.2 of 2023 in B.A.No.510 of 2023

[(2011) 14 SCC 770] is relevant. Further in the decision in Puran v.

Rambilas and Another [(2001) 6 SCC 338], it was observed that

the High Court's inherent jurisdiction under Section 482 of the Cr.P.C.

is not affected by the provisions of Section 397 (3) of the Cr.P.C. and

for securing the ends of justice, High Court has a power to interfere

with the order causing miscarriage of justice or is palpably illegal or

unjustified. Since the petitioner has sought to recall the order based

upon materials that were suppressed from the knowledge of this

court, I am of the view that the application for recall of the order

granting bail is maintainable.

11. As regards the contention on suppression of material facts,

it is noticed that on the date when the bail application was filed, the

Station House Officer of Kolavallur Police Station was the Investigating

Officer. However, on 11.04.2023, based on the order of the State

Police Chief dated 27.03.2023, a new crime was registered and the

entire investigation was handed over to the Crime Branch. Therefore,

it was obligatory upon the former or atleast the new Investigating

Officer to have immediately informed the Court-through the learned

Public Prosecutor about the change in investigation. It was also

informed during arguments that petitioner was even interrogated by

the Crime Branch in the meantime, and none of these factors were

brought to the notice of the Court when the bail application was taken Crl.M.A.No.2 of 2023 in B.A.No.510 of 2023

up for consideration on 08.06.2023. Therefore, this Court was not

made aware of the entire circumstances of the case while considering

the bail application.

12. Further on merits also, it was not informed to this Court

that petitioner was the Managing Director of the business entity in

Qatar and had given a personal guarantee. After allegedly applying

for loan, pointing out expansion of the business, he is alleged to have

diverted the amounts for his personal benefits without doing any

expansion work and absconded Qatar avoiding repayment and using it

for the purpose for which it was availed. Red corner notice is alleged

to have been put up at Qatar and the value involved in the crime is

also substantial. Taking note of the aforesaid circumstances and the

failure to bring to the notice of this court the material facts, I am of

the view that the order granting anticipatory bail was obtained by

suppression of material facts.

13. Apart from the above, curiously, pursuant to the order

granting anticipatory bail, petitioner appeared before the Station

House Officer of Kolavallur Police Station - Investigating Officer in

Crime No.25 of 2023 and subjected himself to interrogation. Even at

that point of time, it was not informed to this Court that the Station

House Officer of Kolavallur Police Station had lost his right to

investigate into the matter. Instead, the Investigating Officer Crl.M.A.No.2 of 2023 in B.A.No.510 of 2023

allegedly interrogated the accused in a case in which he had no

jurisdiction which also indicate a conscious attempt on purporting to

do it under the cover of this Court's direction to suppress material

facts from this Court.

14. Having regard to the above circumstances, this Court is of

the considered view that the anticipatory bail granted to the

petitioner/accused No.1 by order dated 08.06.2023 is liable to be

recalled and reheard afresh.

Ordered accordingly.

Post the bail application for consideration afresh on 07.09.2023.

Sd/-

BECHU KURIAN THOMAS, JUDGE RKM