Kerala High Court
Vinod .P, S/O. Padmanabhan Nair vs State Of Kerala on 23 October, 2024
Author: C.S.Dias
Bench: C.S.Dias
BAIL APPL. NOs. 7526 & 7214 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946
BAIL APPL. NO. 7526 OF 2024
CRIME NO.1418/2023 OF Aluva Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.7214
OF 2024 OF HIGH COURT OF KERALA
PETITIONER/S:
MUHAMMED NAVAS, S/O. HAMZA,
AGED 54 YEARS
PARAKKAL HOUSE, KARYAVATTAM, PERINTHALMANNA,
MALAPPURAM, KERALA,, PIN - 679322
BY ADVS.
S.JAYAKUMAR
AVM.SALAHUDEEN
M.V.DAS
N.K.RAMACHANDRAN
LEKSHMI SWAMINATHAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 SUB INSPECTOR OF POLICE,
ALUVA POLICE STATION, ERNAKULAM RURAL, PIN - 683106
3 MUHAMMED KUNHU MAKKAR ( SOUGHT TO BE IMPLEADED )
S/O.KUNHU MAKKAR MUHAMMED, RESIDING AT NEES VILLA,
MUPPATHADAM, KADUNGALLUR P.O., ERNAKULAM DISTRICT (
SOUGHT TO BE IMPLEADED )
BAIL APPL. NOs. 7526 & 7214 OF 2024
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BY ADV BABU S. NAIR
SR.PP.SMT.PUSHPALATHA M.K.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.10.2024, ALONG WITH Bail Appl..7214/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NOs. 7526 & 7214 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946
BAIL APPL. NO. 7214 OF 2024
CRIME NO.1418/2023 OF Aluva Police Station, Ernakulam
PETITIONER/S:
VINOD .P, S/O. PADMANABHAN NAIR,
AGED 56 YEARS
PEREKKATTIL HOUSE, NEAR BANK JUNCTION, ALUVA WEST,
ERNAKULAM, PIN - 683106
BY ADVS.
S.JAYAKUMAR
AVM.SALAHUDEEN
M.V.DAS
N.K.RAMACHANDRAN
LEKSHMI SWAMINATHAN
R.RAJASREE (CHUTTIMATTATHIL)
C.S.MANU
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 SUB INSPECTOR OF POLICE,
ALUVA POLICE STATION, ERNAKULAM RURAL, PIN - 683106
3 MUHAMMED KUNHU MAKKAR,
AGED 64 YEARS
S/O.KUNHU MAKKAR MUHAMMED, RESIDING AT NEES VILLA,
MUPPATHADAM, KADUNGALLUR P.O., ERNAKULAM DISTRICT,
PIN: 683 110 IS IMPLEADED AS AN INTERVENOR IN THE
BAIL APPLICATION AS PER ORDER DATED 11.09.24 IN
CRL.M.A.NO.1/2024
BAIL APPL. NOs. 7526 & 7214 OF 2024
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BY ADV BABU S. NAIR
SR.PP.SMT.SEETHA S.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.10.2024, ALONG WITH Bail Appl..7526/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NOs. 7526 & 7214 OF 2024
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C.S.DIAS,J
----------------------------------------------------------
Bail Application Nos.7526 & 7214 of 2024
-----------------------------------------------------------
Dated this the 23rd day of October, 2024
COMMON ORDER
These applications are filed under Section 482
of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in
short, 'BNSS'), for an order of pre-arrest bail.
2. The petitioners are the accused 1 and 2 in
Crime No.1418/2023 of the Aluva Police Station,
Ernakulam, which is registered against them for
allegedly committing the offences punishable under
Sections 420, 465, 468 and 471 r/w Section 34 of the
Indian Penal Code (in short 'IPC'). B.A.No.7526/2024 is
filed by the 1st accused and B.A.No.7214/2024 is filed by
the 2nd accused. As the applications arise out of the same
crime, they are consolidated, jointly heard, and are being
disposed of by this common order.
3. The concise case of the prosecution is that: the
defacto complainant/intervenor is doing business in
manpower recruitment in Aluva. The 2nd accused
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st
introduced the 1 accused to the defacto complainant
and informed him that the 1st accused's business had
collapsed, and the accused 1 and 2 wanted to start a
business in Dubai. They informed the defacto
complainant that they desired to purchase his catering
business in Dubai. But, they did not have money with
them. Then, the 1st accused represented to the defacto
complainant that he would mobilise the funds by selling
2.5 acres of his property at Perinthalmanna. After about
six months, the accused again went to the office of the
defacto complainant and offered to register the
properties in the name of the defacto complainant so that
he could create an equitable mortgage over the property.
In May 2015, the 1st accused met the defacto complainant
and requested him to hand over his identity card, pan
card and photographs to register a sale deed in his
favour. After about ten days the 1st accused returned the
documents to the defacto complainant and informed him
that the registration was complete. The accused 1 and 2
handed over document No.2194/2015 of the
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Perinthalmanna Sub Registry Office to the defacto
complainant and requested him to go to the Canara Bank,
Aluva and get the loan sanctioned. On the strength of the
said document, the defacto complainant entered into an
agreement with the 1st accused and he took over the
business. Shockingly, in September 2021, when the
defacto complainant returned to his native place, he was
informed that Crime No.104/2019 was registered against
him and the 1st accused by the assignors of document
No.2914/2015 alleging that their signatures were forged
by the defacto complainant and the 1st accused and the
said document was fabricated. The accused 1 and 2 have,
in furtherance of their common intention, cheated the
defacto complainant. Thus, the accused have committed
the above offences.
4. Heard; Sri. S.Jayakumar, the learned counsel
appearing for the petitioners, Smt.Pushpalatha M.K. and
Smt.Seetha S., the learned Public Prosecutors and
Sri.Babu S.Nair, the learned counsel appearing for the
defacto complainant/intervenor.
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5. The learned counsel for the petitioners
submitted that the petitioners are innocent of the
accusations levelled against them. There is no material to
substantiate the petitioners' culpability in the crime. By
no stretch of imagination can the above offences be
attracted to the facts of the case. The fact that the
assignment deed was executed in the year 2015 and
handed over to the petitioners by itself shows that the
petitioners have not committed the above offences. Even
going by the complaint registered by the defacto
complainant, it can be seen that the principle allegations
are against the 1st accused. There is no specific overt act
attributed against the 2nd accused. The petitioners are
law abiding citizens without any criminal antecedents.
The assignors of the property have registered the
complaint against the defacto complainant because the
document has been executed in his favour. It is only he
who knows the actual manner in which the document was
executed in his favour. The petitioners' custodial
interrogation is not necessary and no recovery is to be
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effected. Hence, the applications may be allowed.
6. The learned Public Prosecutors opposed the
applications. They submitted that there are
incriminating materials to substantiate the petitioners'
culpability in the crime. The petitioners have fabricated
the registered document by impersonating themselves as
the assignors of the deed. In the investigation it has been
revealed that it was the 2 nd accused who had put the
thump impression of the defacto complainant on the
deed. The petitioners' custodial interrogation is
necessary and recovery is to be effected for the proper
investigation of the crime. Hence, the applications may
be dismissed.
7. The learned counsel for the defacto
complainant also seriously opposed the applications. He
submitted that the accused 1 and 2 have thoroughly
cheated the defacto complainant. They made the defacto
complainant believe that the assignment deed was
executed by the assignors in favour of the defacto
complainant. It is only when Crime No.104/2019 was
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registered against the defacto complainant and the 1 st
accused, he became aware that the deed was a fabricated
one. The accused 1 and 2 have frequently visited the
defacto complainant and induced him to purchase the
property and made him hand over the catering business
to the 1st accused. The petitioners' custodial interrogation
is necessary and recovery is to be effected. Hence, the
applications may be dismissed.
8. On a careful scrutiny of the materials on
record, it is evident that, even though the accused 1 and
2 had approached the defacto complainant asking him to
hand over his business to the 1st accused on the basis of
the assignment deed mentioned above, a reading of the
complaint would reveal that it was the 1 st accused who
said that the amount can be secured by selling his 2.5
acres of land in Perinthalmanna, it was the 1 st accused,
who said that the property can be registered in favour of
the defacto complainant. In May 2015, the 1st accused
went to the office of the defacto complainant for the
purpose of getting the assignment deed registered in his
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favour and ten days later he returned the Aadhar Card
and Pan Card to the defacto complainant. Thereafter, it
was the 1st accused who took over the catering business
of the defacto complainant and issued the cheques in
favour of the defacto complainant. Similarly, the
assignors of the property have registered Crime
No.104/2019 against the 1st accused and the defacto
complainant. The above sequence of offence undoubtedly
establish that the allegations are all attributed against
the 1st accused. The only overt act alleged against the 2 nd
accused is that he accompanied the 1 st accused on
numerous days. Even though the learned Public
Prosecutors submitted that it is the 2nd accused who has
impersonated the defacto complainant and affixed his
thump impression on the deed, prima facie, there is no
materials to substantiate the same. That is matter to be
investigated and decided after trial. However, for the sole
reason there is no necessity for the custodial
interrogation of the 2nd accused.
9. In Srikant Upadhyay v. State of Bihar [2024
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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, 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
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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".
10. 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.
11. On an overall 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 accusations
leveled against the 1st accused, the prima facie materials
that substantiate the involvement of the 1 st accused in the
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crime, that the custodial interrogation of the 1st accused
is necessary and recovery is to be effected, I am of the
firm view that the 1st accused is not entitled to an order
of pre-arrest bail. On the contrary, since there is no
specific overt act alleged against the 2 nd accused and is
the only requirement is to prove whether he was the one
who impersonated the defacto complainant, I am
satisfied that the 2nd accused is entitled to an order of
pre-arrest bail.
In the result:
1) B.A.No.7526/2024 filed by the 1st accused is dismissed.
2) B.A.No.7214/2024 filed by the petitioner/2 nd accused
is allowed subject to the following conditions:
(i) The petitioner/2nd accused is directed to surrender
before the Investigating Officer within 10 days
from today.
(ii) In the event of the petitioner's/2 nd accused's
arrest, the Investigating Officer shall release him
on bail on him executing a bond for Rs.50,000/-
(Rupees fifty thousand only) with two solvent
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sureties each for the like amount each;
(iii) The petitioner/2nd accused shall appear before the
Investigating Officer for interrogation, as and
when directed by the Investigating Officer,
including give his specimen thumb impression for
the purpose of forensic examination.
(iv) The petitioner/2nd accused shall not directly or
indirectly make any inducement or threat to the
defacto complainant or procure to any person
acquainted with the facts of the case so as to
dissuade them from disclosing such facts to the
court or to any Police Officer or tamper with the
evidence in any manner, whatsoever;
(v) The petitioner/2nd accused shall surrender his
passport before the jurisdictional court concerned
within a period of one week from the date of his
release on bail. If he has no passport, he shall file
an affidavit to the effect before the said court
within the said period;
(vi) The petitioner/2nd accused shall not get involved in
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any other offence while on bail;
(vii) In case of violation of any of the conditions
mentioned above, the jurisdictional court shall be
empowered to consider the application for
cancellation of bail, if any filed, and pass orders
on the same, in accordance with law.
(viii) Applications for deletion/modification of the bail
conditions shall also be filed before the
jurisdictional court.
(ix) Needless to mention, it would be well within the
powers of the Investigating Officer to investigate
the matter and, if necessary, to effect recoveries
on the information, if any, given by the
petitioner/2nd accused even while he is on bail as
laid down by the Hon'ble Supreme Court in
Sushila Aggarwal v. State (NCT of Delhi) and
another [2020 (1) KHC 663].
(x) The observations made in this order are only for
the purpose of considering the application and the
same shall not be construed as an expression on
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the merits of the case which is to be decided by
the competent courts.
Sd/-
C.S.DIAS, JUDGE
rkc/23.10.2024
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APPENDIX OF BAIL APPL. 7214/2024
PETITIONER ANNEXURES
Annexure-A1 THE TRUE COPY OF THE FIR NO. 1418/2023
DATED 14/10/2023
Annexure-A 2 THE TRUE COPY OF THE PETITIONER IS
PRODUCING THE SAID FIR NO. 0104/2019
DATED 20/02/2019
RESPONDENT ANNEXURES
Annexure R3(a) A TRUE COPY OF THE COMPLAINT FILED BY ME
BEFORE THE J.F.C.M.-I, ALUVA DATED, 10-
10-2023
Annexure R3(b) A TRUE COPY OF THE STAY EXTENSION ORDER
IN CRL.M.A.NO.1/2023 IN
CRL.M.C.NO.5523/2023 DATED, 14-6-2024
RESPONDENT ANNEXURES
ANNEXURE R3(c) A true copy of the complaint filed by
Hameeda and others before the J.F.C.M.,
Perinthalmanna on the basis of which,
Crime No.104/2019 is registered dated,
31-1-2019
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APPENDIX OF BAIL APPL. 7526/2024
PETITIONER ANNEXURES
Annexure -A1 TRUE COPY OF THE FIR NO 1418/2023 DATED
14/10/2023
Annexure-A 2 TRUE COPY OF THE FIR NO. 0104/2019 DATED
20.02.2019
RESPONDENT ANNEXURES
Annexure R3(a) A TRUE COPY OF THE COMPLAINT FILED BY THE
PETITIONER/ADDL. 3RD RESPONDENT BEFORE
THE J.F.C.M.-I, ALUVA DATED, 10-10-2023
Annexure R3(b) A TRUE COPY OF THE STAY EXTENSION ORDER
IN CRL.M.A.NO.1/2023 IN
CRL.M.C.NO.5523/2023 DATED, 14-6-2024
RESPONDENT ANNEXURES
ANNEXURE R3(c) A true copy of the complaint filed by
Hameeda and others before the J.F.C.M.,
Perinthalmanna on the basis of which,
Crime No.104/2019 is registered dated,
31-1-2019
ANNEXURE R3(d) A true copy of the report of the finger
print expert dated, 25-3-2024
