Disposed

Shiju v. the State of Kerala

Kerala HC2 Dec 2014Bail Appl./6966/2014

Case brief

AI extract

What is this about?

In a bail application regarding cheating allegations, the High Court refused straightaway anticipatory bail. Instead, it directed the petitioners to surrender for interrogation and issued stringent conditions, including furnishing property affidavits, if arrested.

What did the court decide?

Direction to surrender for interrogation; if arrested, release on bail after executing bonds with strict conditions.

Shiju Vs the State of Kerala — Cheating and Forgery | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936

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Bail Appl..No. 6966 of 2014 ()

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CRIME NO. 1100/2014 OF MANGALAPURAM POLICE STATION , THIRUVANANDAPURAM

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PETITIONER(S)/A1 TO A3:

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1. SHIJU, AGED 34, S/O. MOHAMMED HANEEFA. AMSARI MANZIL, KALLAMBALAM THIRUVANANTHAPURAM.

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2. ABDUL SALAM AGED 66 YEARS S/O. MOHAMMED ABDUL KHADER, NRS VILLA (MP X/205 A) MANGALAPURAM, MURKKUMPUZHA P.O., THIRUVANANTHAPURAM.

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3. RIJA R, AGE 30 YEARS W/O. SHIJU, ANSARI MANZIL, KALLAMBALAM THIRUVANANTHAPURAM.

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BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.SHAJIN S.HAMEED

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RESPONDENT(S)/STATE:

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1. THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE MANGALAPURAM POLICE STATION REPRESENTED THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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ADDITIONAL RESPONDENT:

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2. P.MADHAVAN NAIR, S/O.PARAMESWARAN PILLAI, KUNNIL PUTHEN VEEDU, VELIYAR VILLAGE, MURUKKUMPUZHA, TRIVANDRUM.

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(R2 IMPLEADED AS PER ORDER IN CRL.M.A.NO.9132/2014 ON 4.11.2014)

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ADDL.R2 BY ADV. SMT.K.KUSUMAM R1 BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 4.11.2014, THE COURT ON 2.12.2014 PASSED THE FOLLOWING:

ALEXANDER THOMAS, J.

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B.A.No. 6966 of 2014

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Dated this the 2^nd day of December, 2014

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O R D E R

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The petitioners herein are the three accused (A1, A2 and A3 respectively) in Crime No.1100/2014 of Mangalapuram Police Station, Thiruvananthapuram district, registered for offences punishable under Secs. 420, 422 and 34 of the IPC. The said crime was registered on the basis of the private criminal complaint filed by the additional respondent No.2 herein (defacto complainant), which was forwarded by the Judicial First Class Magistrate Court-I, Attingal, to the Police for investigation as per the directions issued under Sec.156(3) of the Cr.P.C.. The gist of the allegations in the said complaint is that the petitioners herein (accused Nos.1 to 3) with a dishonest and fraudulent intention to cheat the complainant, had collected an amount of rupees one crore, as investment in a television channel company, proposed to be established by the accused, wherein the accused had agreed to enrol the defacto complainant and his wife as directors and shareholders in the said

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company or to return the above said money with interest on demand and later, the accused misappropriated the above said money after shutting down the television channel ('Prabhatham News'), which had initially went on air and did not to enrol the complainant and his wife as shareholders or directors of the company and further refused to return the money, etc.

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Annexure-A is the private criminal complaint filed as

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Criminal Miscellaneous Petition No.4138/2014 before the Magistrate court. The 2^nd petitioner (A2) is the father-in-law of the 1^st petitioner and the 3^rd petitioner (A-3) is the wife of the 1^st petitioner. It is stated that the 2^nd and 3^rd petitioners have no role in the alleged transaction and that they are neither shareholders nor directors of the above said company.

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That the 1^st petitioner herein (A1) is the Additional Director of the company with authorised share capital of Rs. 50 crores and the T.V. channel named 'Prabhatham News' was inaugurated on 26.1.2014 and the channel went on air. It is the case of the petitioners that the complainant approached the 1^st petitioner and informed his willingness to become shareholder of the company and accordingly, the complainant altogether deposited rupees one

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crore on various occasions. That the shares selling process of the company is a time consuming process and as days went on, the business of the T.V. channel went down and thereby, the channel programmes were not put on air. That on knowing that the business of the T.V. channel had gone down, the complainant started demanding the money and the 1^st petitioner convinced the complainant that either the shares of the company will be transferred in the name of the complainant or the money will be returned. Further, the 1^st petitioner issued cheques as security to the complainant for the amount deposited by him. That the 1^st petitioner and the complainant entered into Annexure-B agreement dated 13.6.2014 stating the above aspects. That the 1^st petitioner in terms of Annexure-B agreement offered the complainant the shares of the company, but later refused to accept the shares, and demanded back the amount. That the 1^st petitioner then informed the complainant that the company is on the verge of take over and that immediately once its shares are sold away to any other person, the amount will be returned. Later the complainant filed AnnexureC injunction application in original suit moved before the civil court concerned at Thiruvananthapuram and secured Annexure-D

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injunction order dated 30.9.2014 restraining and injuncting the petitioners (defendants in the suit) from opening the building and studio complex until further orders.

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It is averred that the present complaint is filed in order to pressurise the 1^st petitioner and that the 2^nd and 3^rd petitioners have no role in the company and that the 2^nd petitioner (father-in-law of the 1^st petitioner ) is the owner of the property, where the studio complex of the T.V. channel is situated and the said property is leased by the 2^nd petitioner to the 1^st petitioner and that the 3^rd petitioner is arrayed as an accused only because she happens to be the wife of the 1^st accused. That the essence and substance of the allegations in the complaint will not make out an offence of cheating under Sec. 420 IPC and that the offence under Sec. 422 is bailable offence and that the only non-bailable offence alleged is one under Sec. 420 IPC (cheating), for which the maximum sentence extends upto only seven years and therefore the legal principles conclusively laid by the Apex Court in the case Arnesh Kumar v. State of Bihar, reported in (2014) 8 SCC 273 = 2014 (3) KLT 143 (SC) would apply, etc. It is prayed by the petitioners that the relief of pre-arrest bail may be granted to them, in the interest of justice.

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The defacto complainant herein has been impleaded as additional respondent No.2 in this application. It is reiterated by respondent No.2 that the criminal offence of cheating has been committed by the accused persons and they have opposed the grant of anticipatory bail in this case. It is averred by the 2^nd respondent, in para 8 of the impleadment application that the document produced by the accused is a forged document. Presumably this allegation may be in relation to Annexure-B. It is further averred therein that the accused had drafted the agreement as per Ext.R-2(11) and it was signed only by the 1^st accused as party and that the defacto complainant being the second party therein has not put his signature therein. So there is no agreement between the 1^st petitioner and the accused. It is further averred in para 7 on page 5 of Crl.M.A.No.9332/2014 filed by the 2^nd respondent in this bail application that the alleged agreement in this regard is actually the one produced as Ext.R-2(11) produced by the 2^nd respondent. Various other submissions are made by the 2^nd respondent and the gist of the pertinent contentions on either side will be dealt with hereinafter.

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Heard the learned Senior Counsel instructed by the

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counsel for the petitioners herein, the learned Public Prosecutor appearing for the 1^st respondent-State and the learned counsel appearing for the 2^nd respondent.

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7(a). The 2^nd respondent, in order to project the case that there was dishonest intention right from the commencement of the transaction, would aver in para 15 of the complaint as follows:

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“On enquiry, the complainant also came to know that a company in the name and style as 'the Mobile Star Satellite Communication (I) Ltd.', has been registered quite long before they approached the complainants, and that the false inducement and false promises were made deliberately, with criminal intention to deceive the complainant and his wife.”

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In order to controvert this, the petitioners would that the 2^nd respondent himself has produced a document as Annexure R-2(1), which is admitted by the 2^nd respondent to be “the Asset Purchase and Shareholders Agreement” and that page No.1 of Annexure R-2 (1), inter alia, stipulates as follows:

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“Mobilestar Satellite Communication (India) Ltd.; a company incorporated and organized and duly existing under Indian Laws and having its registered office at T.C.-14/587, first floor, SJ Tower, Paris road, Bakery Junction, Thiruvananthapuram, Kerala-695 033, India (hereinafter referred to as the 'Buyer', which expression shall, unless repugnant to the context or meaning thereof, mean and include its successors and assigns.”

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It is pointed out by the petitioners that it is the specific case of

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the defacto complainant, as is evident from para 3 of Crl. M.A. No.9332/2014 filed by the R2 in this application that the together

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approached the complainant and entrusted the copy of AnnexureR2-(1) “Asset Purchase and Share Purchase Agreement” and induced the complainant to invest his money as shares of the company, whereupon the shares of the company can be issued to him and that the accused together made the complainant believe that the company will be incorporated soon, etc. It is thus urged by the petitioners that the documents produced by the 2^nd respondent as Annexure-R2(1), which is stated by him to have been entrusted by the 1^st petitioner to the defacto complainant at the time when the former is said to have induced the latter to invest money, could itself clearly prove that the company in question was already in existence as stated in that document itself and that therefore these allegations of the defacto complainant regarding the dishonest intention of the accused at the commencement of the transaction is without any substance.

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(b) It is averred in para 17 of Annexure-A complaint as

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follows:

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“17. It is now reliably understood that the first accused with the assistance, concurrence, consent and knowledge of the other accused, conspired with them, and they, in furtherance of their common intention had very cunningly and deliberately charted out plans to make unlawful enrichment by cheating and to misappropriate the money belonging to the complainant and others, had committed the above said acts of cheating. The accused in

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furtherance of their said common intention and criminal conspiracy, approached the complainant and his wife many times, and by deceitful means, induced to them to believe the false stories narrated by them as true, and thereby made the complainant to advance an amount of Rs. 1,00,00,000/- (Rupees one crore) to the accused 1 to 3, who received the same from the complainant and his wife and thus committed offences under section 420, and 34 IPC. The accused 1 to 3 are thus guilty of committing the above said offences, and hence it is highly necessary in the interest of Justice to proceed against the accused 1 to 3 by taking cognizance of those offences against them by this Hon'ble Court as per law, and to convict them accordingly. If it is found necessary in the discretion of this court, this complaint may be sent to the concerned S.I. of Police Station, Mangalapuram for investigation under Section 156(3) Criminal Procedure Code alternatively.”

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In reply to these allegations, the petitioners would rely on the rulings of Apex Court in V.P.Shrivastava v. Indian Explosives Limited and others reported in (2010) 10 SCC 361, para 29, Anil Mahajan v. Bhor Industries Ltd. reported in (2005) 10 SCC 228 and Joseph Salvaraj.A. v. State of Gujarat & Others reported in AIR 2011 SC 2258 para 25. In V.P.Shrivastava 's case reported in (2010) 10 SCC 361 in para 29, the Apex Court held as follows:

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'In our view, a mere mention of the words “defraud” and “cheat” in Para 12 of the complaint, in the setting that these have been used, is not sufficient to infer that the appellants had dishonest intention right at the beginning when, demonstrably, after due deliberations a tripartite agreement was signed, which, under the given circumstances at that juncture, was considered to be in the interest of all the three parties to the agreement....'.

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In Anil Mahajan v. Bhor Industries Ltd. reported in (2005) 10 SCC

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228 in para 8, it is Apex Court has held as follows:

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'”The substance of the complaint is to be seen. Mere use of the expression “cheating” in the complaint is of no consequence. Except

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mention of the words 'deceive' and 'cheat' in the complaint filed before the Magistrate and 'heating' in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MoU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay.'

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Further in Joseph Salvaraj's case reported in AIR 2011 SC 2258, in para 25, the Apex Court observed as follows:

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“In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation.

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On the basis of these rulings, the petitioners would contend that

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mere use of the words, “defraud” “cheat” and “deceit” etc, in the complaint will not be sufficient to infer that the accused had dishonest intention right at the beginning, until and unless the essence and substance of the factual ingredients of the fraudulent intention, elements of defraud, etc. are cogently and demonstrably made out in the complaint so as to fulfil the factual ingredients of the criminal offence of cheating as envisaged in the Indian Penal Code.

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(c). The defacto complainant has averred that he has filed original suit for recovery of money and permanent prohibitory injunction and other reliefs against the petitioners. The petitioners

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would urge that para Nos.3, 10 and 11 of the plaint of that original suit referred to in Annexure-D injunction application, would clearly falsify the allegations in the present private criminal complaint. Accordingly, it is pointed out that Paras 3, 10 and 11 of the plaint read as follows:

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'3. The defendants 1 to 3 borrowed an amount of Rs. 1 crore from the plaintiffs, agreeing to repay it on demand with interest, in the guise of investing into “Prabhatham News”, a TV channel, which was proposed to be established and functioned by the defendants 1 to 3 as major share holders in their proposed company named “The Mobile Star Satellite Communications (India) Ltd.”. Thereafter, the defendants cheated the plaintiffs and did not return the money or interest on demand.

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“10. After receiving the money of Rs.1 crore from the plaintiffs, the defendants defaulted in repaying the money to the plaintiffs, when demanded in April 2014. They on the other hand promised the plaintiff to issue shares up to the value of the plaintiffs in respect of their proposed company “The Mobile Star Satellite Communications (India) Ltd.” which is the intended purchaser of “Prabhatham News Channel”. But in April 2014 the said Channel was abruptly closed and the telecasting was also stopped. So, the plaintiffs in June 2014, demanded the defendants to return their money. Then the 1^st defendant issued two cheques for Rs. 50 lakh each, in the name of the plaintiff, from his Savings Bank account number: 31909774304, maintained at SBI, Kallabalam, as security for the amount of money so received by the defendants. He has also further issued another undertaking signed by him, agreeing to return the said money or to issue shares in the said company in favour of the plaintiffs. The said letter is also produced herewith. The further understanding was that, in the event of breach of promise, the plaintiffs can present the security cheques in the bank and realize their money.

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The plaintiffs then enquired personally with the people in the locality and came to know that the defendants were playing fraud, misrepresentation and cheating on them. The plaintiffs reliably understood that the defendants misappropriated the plaintiff's money, by misrepresenting and misleading them, in the guise of

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starting a new this Court Channel.'

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It is thus urged by the petitioners that the specific pleading of the defacto complainant in the aforementioned paras of the plaint would show that the case in the suit is that the defendants borrowed the money from the plaintiff agreeing to repay it on demand with interest, etc. and it is only thereafter the defendants cheated the plaintiffs and did not return the money or interest on demand and further that the specific case in paras 10 and 11 of the plaint is that the further understanding was that in the event of breach of promise, the plaintiffs can present the security cheques in the bank and realise the money, etc. It is thus urged that the pleadings in the plaint of the defacto complainant would clearly show that there was no dishonest intention to cheat either at the commencement of the transaction or even subsequently.

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(d). It is averred by the defacto complainant that in order to convince the complainant that the company and the T.V. channel are going to be a reality, the accused had entrusted Ext.R-2(8) Patta karar pathram executed by A-2 in favour of A-1 and that it was the 2^nd accused, who had handed over the copy of Annexure R-2(8) to the complainant and that this conduct shows the criminal

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involvement of the accused in the commission of the above offences. It is further specifically alleged in para 13 of Annexure-A complaint that at the time of issuance of complainant's cheque dated 4.3.2014 for rupees sixty lakh, A-2 had handed over the copy the above said patta karar pathram, referred to as Annexure R-2(8).

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In reply to this, the petitioners would urge that even as per the averments of the complainant, the petitioners had handed over a copy of Ext.R-2(8) document relating to immovable property of A-2 and further that even as per the version of the complainant, he has obtained Annexure-D injunction order in the original suit filed for recovery of money, permanent prohibitory injunction and other relief. Therefore, these averments that the petitioners had given the copy of Annexure R-2(8) document thereby disclosing the details of the said property of A-2 to the complainant can only point out that there was no dishonest intention on the part of the accused and that they were only entering into bonafide transactions or otherwise they would not have disclosed the details of the properties.

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(e). It is further urged by the petitioners that it is the case of the defacto complainant that the 1^st petitioner had given Annexure R-2(9) cheque for Rs. 50 lakhs and Annexure R-2 (10) cheque for

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Rs. 50 lakhs, thus totalling to Rupees one crore to the complainant as security for the money received from the complainant. It is thus contended by the petitioners that even going by these averments of the defacto complainant that the 1^st petitioner had later given cheques for a total amount of rupees one crore to the complainant as security for the money earlier paid can only show that there was no dishonest intention for the accused and that if they had such dishonest intention, they would not have disclosed either the details of Annexure R-2(8) property nor would they have given cheques as per Annexures R-2(9) and R2-(10) for rupees one crore as security in favour of the complainant.

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(f) It is averred by the complainant that the accused had induced the complainant to part with rupees one crore for investment in the T.V. channel company and that they had further agreed to enrol the complainant and his wife as directors and shareholders of the said company, etc. The petitioners would urge that there is no such agreement to make the complainant and his wife as directors of the company, which is evident from Annexure-B agreement dated 13.6.2014. It is further stated that as Annexure-B document is disputed by the complainant, a mere perusal of

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Annexure R-2(11) agreement dated 13.6.2014 produced by none other than the complainant would also show the same fact that there was no agreement for making the complainant and his wife as directors of the company.

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(g) It is averred in para 14 of Annexure-A complaint that after the accused person had subsequently given two cheques for Rs. 50 lakhs each (totalling to rupees one crore), to the complainant as security, referred to as Annexures R-2(9) and R-2(10) cheques, the petitioner has issued another undertaking signed by him agreeing to return the money or to issue the shares in the said company promising further to enrol the complainant and his wife as directors. In reply to this, the petitioners would submit that the only documents on this aspect is either as per Annexure-B as produced by the petitioner or Annexure R(11) as produced by the complainant that neither of these documents disclose any undertaking by the petitioners that the complainant and his wife would be made directors and that there is no such document, whereby the petitioners had agreed to make the complainant and his wife as directors of the company and therefore the basic foundation of the complainant that he was made to part with the money on the

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promise to make him and his wife as directors of the company, is without any substance. It is further urged by the petitioners that the specific case in para 3 of the complaint is that the accused had represented and agreed to enrol the complainant and his wife as Directors and shareholders in the company or to return the money of the complainant with interest and that therefore, since the agreement was for either of such two options, the non-fulfilment of the first option to make them Directors, etc. cannot lead to any imputation of dishonest intention, either initially or subsequently.

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(h) It is also urged by the petitioners that the total extent of plaint A schedule property in the above suit comes to 1.32 acres and its value is worth more than Rupees eight crores and that the studio complex having 9000 sq.m. is worth more than rupees one crore and the equipments mentioned in plaint B schedule property is valued by the defacto complainant in the suit for Rs. 53.48 lakhs and that its value is more and accordingly it is contended that if the petitioners had any dishonest intention, they would not have disclosed the details of Annexure R-2(8) property to the complainant.

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(i) It is also submitted by the petitioners that the 3^rd

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petitioner, who is the wife of the 1^st petitioner, is in no way connected with the alleged transaction and she is not even a shareholder of the company and that she has been falsely implicated in this case. It is also submitted that the 2^nd petitioner, who is the father-in-law of the 1^st petitioner, is not in any way connected with the alleged transaction and that he is not even a shareholder of the company and that he is cardiac patient, who has already undergone coronary artery bypass surgery from SUT Group of Hospitals, Trivandrum. The learned counsel for the petitioners has made available the medical certificate in this regard issued by the Department of Cardio Thoracic Surgery of the SUT Group of Hospitals, Trivandrum, for perusal of this Court, in order to show that the 2^nd petitioner has been undergoing such cardiac treatment.

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It is also urged by the petitioners that the investigating officer in the instant Crime No.1100/2014 of Mangalapuram Police Station, threatened the 1^st petitioner to execute the sale deed in favour of the defacto complainant and that the said officer has been caught red-handed and is now placed under suspension and that he is accused No.1 in the crime registered by the Vigilance Special Investigation as VC No.3/2014/SIU-I, Vigilance Case/Special

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Investigation Unit-I, Poojappura, Thiruvananthapuram. It is also submitted that the said investigating officer is implicated in the above said vigilance case, with the help of the 2^nd accused in that vigilance case, for having demanded an amount of Rs. 3 lakhs from the 1^st petitioner herein for settling the case in the instant crime No.1100/2014 of Mangalapuram Police Station and the said crime has been registered on 5.10.2014 under Sec. 7 of the Prevention of Corruption Act and that the said police officer (who is A-1 in VC3/2014/SIU-I) moved for anticipatory bail application as, B.A.No.7392/2014 before this Court, which has been dismissed by this Court on 16.10.2014.

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The petitioners would also rely on the decision of the Apex Court in the case Siddharm Satlingappa Mehtre v. State of Maharashtra, reported in 2010 (4) KLT 930 (SC), para 93, wherein it was held that “the courts while considering the bail application should try to maintain fine balance between the societal interest vis-a-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the competent court”. The petitioners would also rely on the decision of the Apex Court in Arnesh Kumar v. State of Bihar

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and another reported in (2014) 8 SCC 273 = 2014 (3) KLT 143 (SC) wherein it was held that a person, who is accused of offence punishable with imprisonment for a term, which may be less than seven years or which may extend to 7 years with or without fine, cannot be arrested by the police officer only on his mere satisfaction that such person had committed the offence punishable as aforesaid, etc.

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In this regard, it may be appropriate to make reference

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to the decision of the Apex Court in Arnesh Kumar's case (supra), wherein it was held as follows in paras 7, 8 and 11 of SCC report:

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'7. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:

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“41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -

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(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-

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(i) * * *

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(ii) the police officer is satisfied that such arrest is necessary(a) to prevent such person from committing any further offence; or

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(b) for proper investigation of the offence; or

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(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

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(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

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(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

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and the police officer shall record while making such arrest, his reasons in writing:

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Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.”

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7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

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7.2. Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest.

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7.3. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.

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An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey.

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8.1. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.

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8.2. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused.

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: 21 :-

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8.3. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused.

¶124

8.4. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.

¶125

Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

¶126

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

¶127

11.2. All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

¶128

11.3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

¶129

11.4. The Magistrate while authorising detention of the

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B.A.6966/14 - : 22 :-

¶131

accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

¶132

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

¶133

11.6. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

¶134

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

¶135

11.8. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”

¶136

On going through the order dated 16.10.2014 passed by

¶137

this Court in B.A.No. 7392/2014, it is seen that accused No.1 in that vigilance crime mentioned therein is the investigating officer in the instant crime No.1100/2014 of Mangalapuram Police Station and serious allegations have been raised against the said police officer that he, along with accused No.2 in that vigilance crime, had demanded an amount of Rs. 3 lakhs from the petitioners herein for settling the case in the instant crime No.1100/2014, in which the 1^st petitioner herein is accused No.1. After a detailed evaluation of the

¶138

B.A.6966/14 - : 23 :-

¶139

facts and circumstances in that vigilance case, this Court by order dated 16.10.2014 had not allowed the plea of anticipatory bail of the said police officer and has dismissed the application for anticipatory bail as per order 16.10.2014 in B.A.No.7392/2014.

¶140

On consideration of the submissions made by the learned senior counsel appearing for the petitioners, the learned Public Prosecutor and the learned counsel appearing for respondent No.2 herein and on an evaluation of the totality of the facts and circumstances of the case, this Court is of the considered opinion that the plea of pre-arrest bail in this case need not be straightaway allowed. But it is found that the interest of justice would be better subserved and the interest of both sides will be better protected by adopting the course of action taken by this Court in the order dated 15.7.2014 in B.A.No. 5030/2014, in which, the accused therein were also facing similar allegations of offences under Secs. 420, 406 read with Sec. 34 of the IPC. Accordingly, in the interest of justice, it is ordered as hereunder:

¶141

(i) The petitioners shall surrender before the investigating officer in Crime No.1100/2014 of Mangalapuram Police Station, Thiruvananthapuram district on 15.12.2014 at 10.00 a.m. for interrogation.

¶142

(ii) In case the interrogation as above said is not completed on that day, it is open to the investigating officer concerned to direct the presence of the petitioners on other day/days and time as may be specified by the said

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B.A.6966/14 - : 24 :-

¶144

officer in writing, which the petitioners shall faithfully comply.

¶145

(iii) The petitioners shall fully co-operate with investigation of the instant crime.

¶146

(iv) It is open to the petitioners to produce all relevant documents in their custody, control and possession before the investigating officer in this crime and relating to the matters under investigation.

¶147

(v) After the interrogation as above said is completed, if the investigating officer records arrest of the petitioners, then he shall produce the petitioners before the jurisdictional Magistrate concerned on the same day and on such production, the petitioners, on moving bail applications, shall be released on their separately executing bonds for Rs.1,00,000/- (Rupees one lakh only) with two sureties for the like sum each to the satisfaction of the learned Magistrate concerned and subject to the following conditions:

¶148

(a) One of the sureties shall be a close relative of the petitioner concerned.

¶149

(b) The petitioners shall surrender their passports before the jurisdictional Magistrate concerned, while executing the bond and in case they do not have any passport, they shall file affidavit to that effect before the Magistrate.

¶150

(c) The petitioners shall file separate affidavits before the learned Magistrate while executing the bail bond showing the details and particulars of all the immovable properties that each of them own and also giving undertakings in those affidavits that, subject to the prior claim of any bank or any other person, the said immovable properties would not be sold or otherwise encumbered, until and unless the petitioners clear off the entire due amount of rupees one crore to the defacto complainant herein along with interest thereon @ 15% p.a. from the date of respective receipts of such amounts upto the date of actual repayment to the complainant.

¶151

(d) Each of the petitioners shall file attested copies of the above said affidavits before the Sub Registrar/competent officer of the Registration Department concerned, who has jurisdiction in respect of such of their respective properties, within two weeks from the date of executing the bail bond.

¶152

(e) The Petitioners shall also forward two attested copies each of such affidavits to the investigating officer in this crime within one week from the day of executing the bail bond and the investigating officer shall forward one attested copy of each of such affidavit to the defacto complainant in this crime.

¶153

: 25 :-

¶154

(f) The 1^st petitioner shall report to the investigating officer in this case on every alternate Saturdays between 11 a.m. and 1.00 p.m. for a period of three months or until the filing of the final report, whichever is earlier.

¶155

(g) The petitioners shall report before the investigating officer in this crime as and when required by him for interrogation.

¶156

(h) The petitioners shall not get involved in any similar or graver offence during the period of such bail.

¶157

(i) The petitioners shall not intimidate or influence the witnesses in this case

¶158

(j) The petitioners shall not tamper or attempt to tamper with any evidence in this case.

¶159

(vi) If, after the completion of the interrogation process as above said, the investigating officer does not record arrest of the petitioners, then the petitioners shall forthwith or on the next immediately available working day, appear and surrender before the jurisdictional Magistrate and on their moving bail application, they shall be released by granting bail by the learned Magistrate, subject to the conditions stipulated in clause (v) items (a) to (j) supra, more particularly condition V(c) regarding filing of undertaking affidavit about immovable properties as stated supra.

¶160

In case the petitioners violate any of the above clauses

¶161

Nos.(d) to (j) attached to conditions v and vi supra, it is open to the investigating officer to move the learned Magistrate concerned for cancellation of the bail as held in P.K Shaji v. State of Kerala reported in AIR 2006 SC 100.

¶162

The application stands finally disposed of, as above.

¶163

sdk+

¶164

Sd/ALEXANDER THOMAS, JUDGE

¶165

///True copy///

¶166

P.S. to Judge

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B.A.6966/14 - : 26 :-

Shiju v. the State of Kerala

Case brief

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Shiju v. the State of Kerala

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