Kerala High Court

Sathyan vs State Of Kerala on 23 February, 2024

Author: C.S.Dias

Bench: C.S.Dias

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
  FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
                    BAIL APPL. NO. 2 OF 2024
     CRIME NO.1132/2023 OF OLLUR POLICE STATION, THRISSUR
 AGAINST THE ORDER/JUDGMENT CRMC 1668/2023 OF DISTRICT COURT &
                    SESSIONS COURT,THRISSUR




PETITIONERS/ACCUSED 1 AND 2:


    1     SATHYAN,
          AGED 68 YEARS
          S/O. KUNJAYYAPAN, KODAKKATIL HOUSE, CHOONDAL
          VILLAGE, THALAPILLY TALUK, KECHERY P.O., THRISSUR
          DISTRICT, PIN - 680501

    2     SANAL K.S,
          AGED 38 YEARS
          S/O.SATHYAN, KODAKKATIL HOUSE, CHOONDAL VILLAGE
          THALAPILLY TALUK, KECHERY P.O., THRISSUR DISTRICT,
          PIN - 680501

          BY ADV K.NANDINI




RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
          KERALA, PIN - 682031

    2     SUBHADRA,
          AGED 54 YEARS
          W/O SUBRAMANYAN, MUDHUKATTIL HOUSE,PARANNUR,
          CHOONDAL VILLAGE, THALAPPILLY TALUK, THRISSUR-
          680502.( SOUGHT TO BE IMPLEADED)
 B.A. NO.2 of 2024
                                   2



OTHER PRESENT:

             SR PUBLIC PROSECUTOR SMT SEETHA S




      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.02.2024,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 B.A. NO.2 of 2024
                                  3




       Dated this the 23rd day of February, 2024

                               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 petitioners are the accused 1 and 2 in Crime

No.1132/2023 of the Ollur Police Station, Thrissur

registered against the accused (five in number) for

allegedly committing the offences punishable under

Sections 406 and 420 of the Indian Penal Code.

3. The crux of the prosecution case is that; the

accused 1 and 2 in furtherance of their common intention,

had approached the de facto complainant in the year,

2016 and assured that they would arrange a purchase

loan for Rs.25,00,000/- subject to the condition that she B.A. NO.2 of 2024

creates an equitable mortgage in favour of Kuttanellur

Service Co-operative Bank. The de facto complainant on

believing the promise made by the accused 1 and 2

handed over the title deeds of her property.

Consequently, the accused created an equitable

mortgage in favour of the Bank and secured the loan for

Rs.25,00,000/-. However, it later turned out to be that,

the accused had actually availed a loan for

Rs.1,25,00,000/- by manipulating the loan application and

other documents given by the de facto complainant.

Thus, the accused have committed the above offences.

4. Heard Smt.K.Nandini, learned counsel appearing

for the petitioners and Smt. Seetha S., the learned Senior

Public Prosecutor.

5. Learned counsel appearing for the petitioners

submitted that the petitioners are totally innocent of the

accusation levelled against them. In fact, the petitioners

have been made scapegoats in the incident. Several B.A. NO.2 of 2024

persons have been cheated by the office bearers of the

Kuttanellur Service Co-operative Bank. The petitioners

have filed Annexure A1 suit before the Civil Court for a

decree of declaration. The petitioners have also lodged a

complaint with the police against the action of the bank

officials. They also complained to the Enforcement

Directorate for the offences committed by the Bank. At

any rate, the petitioners' custodial interrogation is not

necessary and no recovery is to be effected. The

petitioners are willing to abide by any stringent condition

that may be imposed by this Court and co-operate with

the investigation. Hence, the application may be

allowed.

6. The learned Public Prosecutor seriously opposed

the application. She contended that the accused had

manipulated the documents and have taken the de facto

complainant for a ride. After paying the de facto

complainant Rs.25,00,000/- the accused misappropriated B.A. NO.2 of 2024

the balance amount of Rs.1/- crore. The investigation is

only at its preliminary stage, that the custodial

interrogation of the accused is necessary and recovery is

to be effected. If the petitioners are granted an order

of pre-arrest bail, it would hamper with the

investigation. Hence, the application may be dismissed.

7.The gravamen of the prosecution allegation is that,

the accused 1 and 2 in furtherance of their common

intention, after promising the de facto complainant that

they would secure a loan for her for Rs.25,00,000/-,

without her consent created an equitable mortgage with

the Bank and received an amount of Rs.1,25,00,000/-.

Out of the said amount, they only paid Rs.25,00,000/- to

the de facto complainant and siphoned off the balance

amount. The petitioners had filed an application for a

similar relief as Crl.M.C. No.1668/2023 before the Court of

Session, Thrissur. By Annexure A4 order, the learned

Sessions Judge dismissed the application, principally on B.A. NO.2 of 2024

the ground that the petitioners' custodial interrogation is

necessary and the investigation is only at its preliminary

stage.

8. 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 CrPC 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;

B.A. NO.2 of 2024

(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 B.A. NO.2 of 2024

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 CrPC 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.

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 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. B.A. NO.2 of 2024

10. 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 CrPC 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."

On an anxious consideration of the facts, the rival

submissions made across the Bar, the materials placed B.A. NO.2 of 2024

on record, and on comprehending the nature, gravity

and seriousness of the economic offences alleged against

the petitioners, that the petitioners' custodial

interrogation is necessary and recovery is to be effected,

I am convinced that the petitioners have 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. Consequently, the bail application is

dismissed.