Kerala High Court
Subratho Bhattacharya vs State Of Kerala on 28 June, 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 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
BAIL APPL. NO. 2375 OF 2024
CRIME NO.850/2015 OF Nooranadu Police Station, Alappuzha
AGAINST THE JUDGMENT DATED 14.03.2024 IN CRMP NO.997 OF 2024 OF
DISTRICT & SESSIONS COURT, ALAPPUZHA
PETITIONERS/ACCUSED NOS.4 & 5:
1 SUBRATHO BHATTACHARYA, AGED 61 YEARS S/O
V.BHATTACHARYA, F-19, SOUTH CITY - 1, GURUGRAM,
HARYANA, PIN - 122001
2 GURMEET SINGH, AGED 60 YEARS S/O KULWANT SINGH CHAHAL,
DP-9 PITAMPURA, NEW DELHI, PIN - 110034
BY ADVS. ADARSH KURIAN K.V.PAVITHRAN JISSMON A
KURIAKOSE
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH
COURT OF KERALA, PIN - 682031
2 THE STATION HOUSE OFFICER, VEEYAPURAM POLICE STATION,
ALAPPUZHA DISTRICT - 690514, THROUGH PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN -
682031
BY SMT.NEEMA T.V. - SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
28.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO.2375 OF 2024
2
ORDER
Dated this the 28th day of June, 2024
The application is filed under Section 438 of
the Code of Criminal Procedure, 1973, for an order of
pre-arrest bail.
2. The petitioners are the accused 4 and 5 in
Crime No.264/CB/ALP/R/2021 of the Crime Branch,
Alappuzha (which was earlier registered as Crime
No.5 of 2020 of the Veeyapuram Police Station,
Alappuzha) registered against the accused, for
allegedly committing the offences punishable under
Sections 420 and 511 of 465 read with Section 34 of
the Indian Penal Code (in short, 'IPC') and Sections
2(c), 3, 4, 5 and 6 of the Prize Chits and Money
Circulation Schemes (Banning) Act and Section 45(s)
of Reserve Bank of India Act.
3. The gravamen of the prosecution case is that:
BAIL APPL. NO.2375 OF 2024
the accused 2 to 6 had formed the 1st accused
company named PACL India Ltd., and appointed
accused 7 to 11 as their field executives and accused
12 and 13 as their agents. The accused, in
furtherance of their common intention, to make
unlawful gain for themselves and unlawful loss to the
defacto complainant and her husband, induced them
and made them believe that if they invested
Rs.31,840/-, the accused would pay them an exorbitant
profit. However, the accused failed to pay any interest
or return the capital. Thus, the accused have
committed the above offences.
4. Heard; Sri.Adarsh Kurian, the learned
counsel appearing for the petitioners and Smt.Neema
T.V, the learned Senior Public Prosecutor.
5. The learned counsel for the petitioners
BAIL APPL. NO.2375 OF 2024
submitted that the petitioners are totally innocent of
the accusations levelled against them. They have
been falsely implicated in the crime. The petitioners
were not in charge of the affairs and management of
the company of the 1st accused. The transactions took
place in 2011. The petitioners' custodial interrogation
is not necessary and no recovery is to be affected. In
fact, pursuant to Section 41A notices, the petitioners
appeared before the Investigating Officer and they
were interrogated. Therefore, the petitioners' further
interrogation is not necessary. Hence, the application
may be allowed.
6. The learned Public Prosecutor seriously
opposed the bail application. The Investigating Officer
has filed a bail objection report, inter alia, contending
that the crime was initially registered by the
BAIL APPL. NO.2375 OF 2024
Veeyapuram Police Station, which was subsequently
transferred to the crime branch. The accused have
committed serious financial fraud in various parts in
Kerala and the ADGP South Zone has transferred the
investigation from the local police stations to the
Crime Branch. The investigation conducted so far
reveals that, all the accused have cheated the
depositors lakhs of rupees, by promising exorbitant
profit. In fact, the CBI and the Enforcement
Directorate have registered separate First Information
Reports against accused 1 to 6. The petitioners'
custodial interrogation is necessary for the proper and
full investigation of the crime. If the petitioners' are
granted an order of pre-arrest bail, it would torpedo
the investigation, which is already prolonged due to
deliberate action of the accused. Hence, the
BAIL APPL. NO.2375 OF 2024
application may be dismissed.
7. The prosecution allegation against the
petitioners is that, the accused in furtherance of their
common intention, had induced the defacto
complainant and her husband to make investment in
their company on the assurance of exorbitant profit.
However, they did not pay any interest or return the
capital .
8. On an appreciation of the materials on
record, it is seen that there were several cases
registered against the petitioners in different parts of
the country. It is admitted fact that the petitioners
were arrested and remanded to judicial custody in the
Tihar jail. The petitioners had approached the
Honourable Supreme Court of India and were granted
time to approach the jurisdictional courts to file
BAIL APPL. NO.2375 OF 2024
appropriate applications. Therefore, it is evident that
the petitioners are persons with criminal
antecedents.
9. The petitioners had moved a similar
application before the Court of Session, Alappuzha,
which was dismissed by Annexure A1 order on the
finding that the petitioners' custodial interrogation is
necessary and there is every likelihood of the
petitioners fleeing from justice.
10. 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,
BAIL APPL. NO.2375 OF 2024
the position is that the power to grant anticipatory bail
under S.438, CrPC 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".
BAIL APPL. NO.2375 OF 2024
11. 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.
12. On an anxious consideration of the facts, rival
submissions made across the Bar and the materials
placed on record, especially on comprehending the
nature, gravity, and seriousness of the economic
offences alleged against the petitioners, that the
petitioners are persons with criminal antecedents,
BAIL APPL. NO.2375 OF 2024
the petitioners' custodial interrogation is necessary
and that the investigation of the case is not complete,
even though the crime was registered in the year
2020, due to the absence of the petitioners, I am not
satisfied that the petitioners have made out any valid
ground to invoke the extraordinary jurisdiction of this
Court under Sec.438 of the Code. Hence, I am not
inclined to allow the application.
Resultantly, the bail application is
dismissed.
Sd/-
C.S.DIAS,JUDGE
SSK/28/06
BAIL APPL. NO.2375 OF 2024
APPENDIX OF BAIL APPL. 2375/2024
PETITIONER ANNEXURES
Annexure THE TRUE COPY OF ORDER DATED. 14.03.2024 IN CRL.
A1 M.P. NO. 997 OF 2024 OF SESSIONS JUDGE, ALAPPUZHA
Annexure A TRUE COPY OF THE SECTION 41A NOTICE DATED
A2 03.02.2024 RECEIVED BY THE PETITIONER NO.1
Annexure A TRUE COPY OF THE SECTION 41A NOTICE DATED
A3 02.02.2024 RECEIVED BY THE PETITIONER NO.2
