Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 21ST DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945 BAIL APPL. NO. 11585 OF 2023 CRIME NO.2256/2023 OF TOWN EAST POLICE STATION, THRISSUR PETITIONER:
VISHNUPRASAD T U, AGED 28 YEARS S/O UNNIKRISHNAN T M, THOTTIPARAMBIL HOUSE,VATTANATHRA P O, AMBALLUR, THRISSUR DISTRICT, PIN - 680302 BY ADVS.
RAKESH P.
MAMATHA S.
RESPONDENTS:
1 STATE OF KERALA, REP BY S.P. OF POLICE, THRISSUR TOWN EAST POLICE STATION, (CRIME NO.2256/2023 OF THRISSUR TOWN EAST POLICE STATION),REP. THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 JOHNS PAUL VALAPPILA, S/O. PAUL VALAPPILA, VALAPILA (H), VAZHAKKALA, THRIKKAKARA P O, ERNAKULAM DISTRICT ( IS IMPLEADED AS ADDITIONAL SECOND RESPONDENT AS PER THE ORDER DATED 21.2.2024 IN CRL. M.A NO.1 OF 2024) BY ADVS.
N.U.HARIKRISHNA MITHUN BABY JOHN SR.PUBLIC PROSECUTOR SMT. NEEMA T.V.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A. NO.11585 of 2023 2 Dated this the 21st day of February, 2024 O R D E R 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 petitioner is the sole accused in Crime No.2256/2023 of the Thrissur Town East Police Station,, registered against him for allegedly committing the offences punishable under Sections 406, 408, 420, 465, 468, 471 of the Indian Penal Code.
3. The crux of the prosecution case is that; the accused started working as the Finance Manager of the company named M/s Valappila Communications Pvt. Ltd, Thrissur (‘company’, for short) from 1.11.2022. By abusing his official position in the company, he misappropriated an amount of Rs.1,38,20,250/- which was
B.A. NO.11585 of 2023 3 entrusted to him to pay the statutory dues of the company, namely, GST, Income Tax, PF ESI, TDS etc.
Instead the accused transferred the above amount to his bank account. Thereafter, he forged the receipts of the statutory authorities. Thus, the accused has committed the above offences.
3.
Heard Sri. Rakesh P., learned counsel appearing for the petitioner, Smt.Neema T.V., the learned Senior Public Prosecutor and Sri. N.U.Harikrishnan, the learned counsel
appearing
for
the
de
facto complainant/intervenor.
4.
Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. The de facto complainant has falsely filed the complaint against the petitioner.
Actually, the de facto complainant tried to evade the tax payable to the statutory authorities and deliberately transferred the amount to the bank account of the
B.A. NO.11585 of 2023 4 petitioner. Later, the petitioner withdrew the amount from the bank and paid it in cash to the de facto complainant. It is suppressing all these facts, the present complaint has been filed. At any rate, the petitioner’s custodial interrogation is not necessary. The petitioner is 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.
5.
The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the investigation in the case has now been transferred to Crime Branch as per order No.D1/58370/2023/RC dated 14.11.2023 by the District Police Chief, Thrissur. The initial investigation has revealed that the petitioner while working as the Finance Manager of the above company, has with the knowledge and intention to cheat the company and to make unlawful gain for himself had
B.A. NO.11585 of 2023 5 transferred Rs.1,38,20,250/- from the bank account of the company in the Overseas Bank, Palace Road Branch, Thrissur, which was kept for payment of GST, Income Tax, PF, ESI, TDS etc., to his bank account in Canara Bank Amballur Branch bearing No.3535101008002 and produced fabricated documents to show that he had remitted the statutory liabilities and tax to the competent authorities. The investigation in the case, which is at the nascent stage, reveals that the petitioner has siphoned off substantial amount of the company. The petitioner had diverted the funds to different bank accounts. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, there is every likelihood of him tampering with evidence and influencing the witnesses.
He may also flee from justice. Hence, the application may be dismissed.
6. The learned counsel appearing for the de facto
B.A. NO.11585 of 2023 6 complainant/intervenor also opposed the application. He reiterated the contentions of the learned Public Prosecutor. He also prayed that the application may be dismissed.
7. The gist of the prosecution allegation is that, the petitioner while working as a Finance Manger of the company, with an intention to cheat the company, had with the full knowledge transferred an amount of Rs. 1,38,20,250/- from the bank account of the company to his personal bank account and, thereafter, diverted the amount to various bank accounts. In order to hood wink the company, the petitioner had fabricated receipts of the statutory authorities to establish that he had remitted the liabilities and taxes.
8. The petitioner had filed a similar application before the Court of Session, Thrissur as Crl.M.C. No.1676/2023.
The learned Sessions Judge. by Annexure 1 order, had dismissed the application on the cardinal ground that it
B.A. NO.11585 of 2023 7 would be highly prejudicial and detrimental to the investigation if the petitioner was granted an order of pre- arrest bail, especially when custodial interrogation was inevitable.
9.
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
B.A. NO.11585 of 2023 8 accusation and the exact role of the accused must be properly comprehended before arrest is made;
(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
B.A. NO.11585 of 2023 9 genuineness that shall have to be considered in the matter of grant of bail and in the event of there 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.
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
B.A. NO.11585 of 2023 10 the crime and his liberty is being misused.
11. 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 a consideration to the facts, the materials placed
B.A. NO.11585 of 2023 11 on record, the rival submissions made across the Bar, I am prima facie satisfied that the accusations levelled against the petitioner are serious and grave economic offences.
On comprehending the fact that the investigation in the case is at nascent stage, that the petitioner’s custodial interrogation is necessary and recovery is to be effected, I am of the definite view 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.
Consequently, the bail application is dismissed.
SD/- C.S.DIAS, JUDGE rmm/21/2/2024