Disposed

Saju Bin Salim v. State of Kerala

Kerala HC29 Oct 2019Crl.MC/278/2019

Case brief

AI extract

What is this about?

Medical-admission cheating allegations prompted requests for quashing and anticipatory bail. The court declined quashing, rejected renewed anticipatory bail, extended surrender time by two weeks, and directed expeditious, non-overlapping investigations. One quashing petition and the bail application were dismissed; the remaining petitions were disposed of.

What did the court decide?

Surrender time extended by two weeks from the notified certified-copy receipt date, as a last chance; directions issued for expeditious, non-overlapping investigations.

Saju Bin Salim Vs State of Kerala — Quashing and FIR | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶4

TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941

¶5

CRL.MC.NO.8677 OF 2018

¶6

CRIME NO.1562/2018 OF KOTTARAKKARA POLICE STATION, KOLLAM

¶7

PETITIONER/1ST ACCUSED:

¶8

DR.R.D.HARSHAN, AGED 51 YEARS, S/O.V.DEVARAJAN, RESIDING AT UJJAYANI, KALLUVETTAMKUZHI, MANGAD P.O., CHITHARA, KOLLAM, PIN- 691559.

¶9

BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SMT.ANUROOPA JAYADEVAN, SHRI.ASHRUTH NASER

¶10

RESPONDENTSSTATE & DEFACTO COMPLAINANT:

¶11

1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI- 682031.

¶12

2 GANESHKUMAR, AGED 54, S/O.THRIVIKRAMAN NAIR, SREEVINAYAKA HOUSE, AVANOOR, MAMOODU, VALLOM MURI, NEDUVATHOOR, KOTTARAKKARA, PIN-691531.

¶13

SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1 SRI.M.J.JIJO ANTONY, ADVOCATE FOR R2.

¶14

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.10.2019, ALONG WITH B.A.NO.413/2019, CRL.M.C.NO.278/2019 & CRL.M.C.NO.8656/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶15

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶16

PRESENT

¶17

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶18

TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941

¶19

BAIL APPL.NO.413 OF 2019

¶20

CRIME NO.80/2018 OF ATTINGAL POLICE STATION , THIRUVANANTHAPURAM

¶21

PETITIONER/ACCUSED:

¶22

DR.R.D. HARSHAN, AGED 51 YEARS, S/O.DEVARAJAN, RESIDING AT UJJAYANI (H), KALLUVETTAMKUZHI, MANGAD.P.O,CHITHRA, KOLLAM-691 015.

¶23

BY ADV. SRI.N.BIJA KRISHNA

¶24

RESPONDENT/COMPLAINANT:

¶25

1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -683031.

¶26

*ADDL. 2 SHEELA SATHEESHAN, AGED 55 YEARS, W/O SATHEESHAN, NANDHANAM, NEAR MAMMAM MARKET, KIZHUVILLAM VILLAGE, ATTINGAL, THIRUVANANTHAPURAM DISTRICT.

¶27

*IS IMPLEADED AS ADDL. R2 AS PER THE ORDER DATED 8.8.2019 IN CRL.M.A.NO.2/2019 IN B.A.NO.413/2019.

¶28

SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1. SRI.K.B.ARUNKUMAR, ADVOCATE FOR R2.

¶29

THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 29.10.2019, ALONG WITH CRL.M.C.NO.8677/2018, CRL.M.C.NO.278/2019 & CRL.M.C.NO.8656/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶30

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶31

PRESENT

¶32

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶33

TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941

¶34

CRL.M.C.NO.278 OF 2019

¶35

CRIME NO.80/2018 OF ATTINGAL POLICE STATION, THIRUVANANTHAPURAM

¶36

PETITIONER/ACCUSED NO.1:

¶37

SAJU BIN SALIM, AGED 32 YEARS, S/O.SALIM, SALIM MANZIL, MANGAMKUZHI.P.O, MAVELIKKARA, ALAPPUZHA-690588.

¶38

BY ADV. SRI.M.T.SURESHKUMAR

¶39

RESPONDENTS/STATE & DEFACTO COMPLAINANT:

¶40

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

¶41

2 SHEELA SATHEESAN, AGED 55 YEARS, W/O.SATHEESAN, NANDANAM, MAMAM MARKET, KIZHUVILLOM VILLAGE, ATTINGAL, THIRUVANANTHAPURAM-695104.

¶42

SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1. SRI.K.B.ARUNKUMAR, ADVOCATE FOR R2.

¶43

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.10.2019, ALONG WITH CRL.M.C.NO.8677/2018, B.A.NO.413/2019 & CRL.M.C.NO.8656/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶44

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶45

PRESENT

¶46

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶47

TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941

¶48

CRL.M.C.NO.8656 OF 2018

¶49

CRIME NO.80/2018 OF ATTINGAL POLICE STATION, THIRUVANANTHAPURAM

¶50

PETITIONER/2ND ACCUSED:

¶51

DR.R.D.HARSHAN, AGED 51, S/O. DEVARAJAN, RESIDING AT UJJAYINI, KALLUVETTUMKUZHI, MANGAD PO., CHITHARA, KOLLAM-691559.

¶52

BY ADV.K.SURESH ADV.SMT.DEEPTHI S.MENON

¶53

RESPONDENTS/STATE & DEFACTO COMPLAINANT:

¶54

1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.

¶55

. 2 SHEELA SATHEESHAN, AGED 54, W/O SATHEESHAN, NANDHANAM VEEDU, NEAR MAMMAM MARKET, KIZHUVILLAM, ATTINGAL-695101.

¶56

SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1. SRI.K.B.ARUNKUMAR, ADVOCATE FOR R2.

¶57

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.10.2019, ALONG WITH CRL.M.C.NO.8677/2018, B.A.NO.413/2019 & CRL.M.C.NO.278/2019M THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶58

ALEXANDER THOMAS, J.

¶59

------------------------------------Crl.M.C. No. 8677 of 2018, B.A. No. 413 of 2019, Crl.M.C. No. 278 of 2019 &

¶60

Crl.M.C. No. 8656 of 2018

¶61

Dated this the 29^th day of October, 2019

¶62

O R D E R

¶63

Crl.M.C. No. 8677 of 2018 arises out of Crime No.1562/2018 of Kottarakkara Police Station, whereas the other three matters arise out of Crime No.80/2018 of Attingal Police Station. As the allegations in these crimes are broadly similar and as the accused persons in these two crimes are same, these matters are disposed of on the basis of this common order. Crl.M.C. No. 8677 of 2018

¶64

The case projected in Crl.M.C. No. 8677/2018 is as follows: The petitioner herein is the 1^st accused in Crime No.1562/2018 of Kottarakara Police Station alleging offences under Secs.420 & 34 of the IPC. The gist of the allegation is that in 2015, the petitioner introduced the 2^nd respondent to the 2^nd accused in the crime for making arrangements to secure admission for the 2^nd respondent's son in the BGS Medical

¶65

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶66

College, Bangalore. Certain amounts were also transferred to the account of the petitioner by the 2^nd respondent. The 2^nd respondent's son did not get the admission and the amount of Rupees Twenty Five Lakhs paid was also not returned. The allegations disclose that the petitioner introduced the 2^nd respondent to the 2^nd respondent and the amounts paid by the 2^nd respondent to the petitioner were also transferred to the 2^nd accused. Now the allegation is that the son of the 2^nd respondent did not get the admission and the amount paid through the petitioner is also not returned. The petitioner submits that even if the allegations in the complaint filed by the 2^nd respondent are on its face value, there are no circumstances which would indicate or disclose any offence against the petitioner who introduced the 2^nd respondent to the 2^nd accused in the case. Now the petitioner is sought to be implicated in the crime by invoking Sec.34 of the IPC. It is also pointed out that on a complaint filed by one Smt.Sheela Satheesan regarding the same transaction, Crime No.80/2018 of the Attingal Police Station is registered and is being investigated. It is in the light of these averments and contentions that the

¶67

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶68

petitioner has filed the instant Criminal Miscellaneous Case under Sec.482 of the Cr.P.C. with the following prayers.

¶69

“ Allow this Criminal Miscellaneous Case and to quash Annexure A1 FIR in Crime No.1562/2018 of Kottarakkara Police Station and to exonerate the petitioner of all allegations leveled against him.”

¶70

Heard Sri.K.Gopalakrishna Kurup, learned Senior Counsel instructed by Smt.Anuroopa Jayadevan, learned counsel appearing for the petitioner (A1) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 (State).

¶71

The petitioner herein (A1) and accused No.2 in the instant Crime No.1562/2018 of Kottarakkara Police Station had earlier approached this Court seeking anticipatory bail in respect of their involvement in the abovesaid crime by filing B.A. No. 5043/2018 . At the request of both sides the defacto complainant in this crime has also been impleaded as additional respondent No.3. On the request of all the parties concerned, this Court had permitted them to endeavour for mediatory settlement of disputes. Accordingly the accused persons and defacto complainant in this crime had appeared before the Mediation Centre attached to this Court and Mediated Interim Settlement Agreement dated

¶72

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶73

21.12.2018 was arrived at between the parties wherein it has been signed by accused No.2 as well as the defacto complainant. The terms and conditions of the said mediation settlement agreement dated 21.12.2018 in relation to the abovesaid B.A. No.5043/2018 (arising out of Crime No.1562/2018 of Kottarakkara Police Station) reads as follows:

¶74

“

¶75

Mediated Interim Settlement Agreement

¶76

1. In respect of the subject matter of the Bail Application No.5043/2018, the parties have enter into an agreement for payment and discharge of the claim amount of Rs.19,00,000/- (Rupees Nineteen lakhs only) by 5 (five) installments within a period upto 30.06.2019 as under :-

¶77

1. The first installment payment of Rs.2,00,000/- (Rupees Two lakhs only) will be made on or before 05.01.2019 by the 2^nd petitioner Mr.Saju Bin Salim to the Addl. 3^rd Respondent Mr.Ganesh Kumar.

¶78

2. The second installment payment of Rs.3,00,000/- (Rupees Three lakhs only) will be made on or before 31.01.2019 by the 2^nd petitioner Mr.Saju Bin Salim to the Addl. 3^rd Respondent Mr.Ganesh Kumar.

¶79

3. The third installment payment of Rs.5,00,000/- (Rupees Five lakhs only) will be made on or before 30.03.2019 the by 2^nd petitioner Mr.Saju Bin Salim to the Addl.3^rd Respondent Mr.Ganesh Kumar.

¶80

4. The fourth installment payment of Rs.5,00,000/-(Rupees Five lakhs only) will be made on or before 30.05.2019 the by 2^nd petitioner Mr.Saju Bin Salim to the Addl.3^rd Respondent Mr.Ganesh Kumar.

¶81

5. The fifth installment payment of Rs.4,00,000/- (Rupees Four lakhs only) will be made on or before 28.06.2019 by the 2^nd petitioner Mr.Saju Bin Salim to the Addl.3^rd Respondent Mr.Ganesh Kumar along with accumulated interest on the above installment amounts @ 5.5% per annum for the respective deferred payments to be made, being from 21.12.2019 till such respective dates of actual payments.

¶82

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶83

..9..

¶84

2. The parties seeks indulgence of the Honourable Court to have the subject criminal case against the 2^nd petitioner in abeyance to enable 2^nd petitioner to settle the matter as above without any breach. Upon full and final compliance of the above payment obligations, the Addl.3^rd Respondent shall have no objection to compound/quash the above criminal proceedings.

¶85

3. In default of any of the payments as per above schedules, the above arrangement shall be deemed to come to an end and the Addl.3^rd respondent (Mr.Ganesh Kumar) would be entitled to bring to the notice of the Hon'ble Court the default and seeks further orders or directions and 3^rd respondent shall be entitled to such other remedies including recovery of such above amounts from the 2^nd petitioner (Mr.Saju bin Salim).

¶86

4. The 2^nd petitioner will, on or before 29^th Dec., 2018, hand over directly or through counsel, to the counsel for the 3^rd respondent Mr.Ganesh Kumar, 5 individual dated cheques in the name of said Mr.Ganesh Kumar for the said five installment amounts excluding the interest due computed as above and payable by bank transfer which the 3^rd respondent shall be entitled to present on or after the respective dates.

¶87

5. As the arrangements are between the 2^nd petitioner and the Addl.3^rd respondent, the signature of the other non-binding parties are not obtained. ”

¶88

Thereafter this Court had disposed of anticipatory bail application filed by the accused persons as B.A. No. 5043/2018 as per order dated 9.1.2019 granting anticipatory bail to the accused persons and taking note of the abovesaid mediation settlement agreement. The abovesaid order dated 9.1.2019 rendered by this Court granting anticipatory bail to the accused persons in B.A. No. 5043/2018 reads as follows:

¶89

“ The petitioners herein apprehending arrest in Crime No.1562/2018 of Kottarakkara Police Station for offences punishable under section 420 read with

¶90

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶91

..10..

¶92

section 34 of the Indian Penal Code sought anticipatory bail.

¶93

2. When the matter was taken up for hearing, it was found that since the dispute related to payment of money, there was a chance of settlement, if mediation was adopted. Accordingly, the additional third respondent, who was the defacto complainant was impleaded. After the appearance of the defacto complainant, both sides submitted that they are willing for a mediation. Accordingly, consent parties was obtained and the matter was referred for mediation. A report of the mediator has now been received along with mediated settlement agreement. I have perused the above agreement.

¶94

3. It seems that the parties have settled with specific terms, regarding the payment of money. Both sides acknowledged the due execution of the above agreement and asserted that they will comply with the respective terms of agreement. I am satisfied that the parties have voluntarily and amicably settled their dispute. They are bound by the terms of the agreement. Hence, the above mediated settlement agreement is accepted and taken on record. It will form part of this order. Both sides can rely on it for all intents and purposes. In case of default of any clause, the aggrieved person will be entitled to seek appropriate reliefs for the enforcement of the agreement. Accordingly, the bail application is allowed as follows:

¶95

(i) Petitioners shall appear before the investigation officer within ten days from today and shall undergo interrogation. After interrogation, identification and recovery, if any, if they are proposed to be arrested, they shall be released on bail on each executing a bond for a sum of Rs.40,000/(Rupees forty thousand only) each with two sureties for the like sum each.

¶96

(ii) They shall appear before the investigating officer as and when called for.

¶97

(iii) They shall not threaten, coerce or intimidate the defacto complainant or his witnesses.

¶98

(iv) They shall not get involved in any other identical offence and the involvement if any, will be a ground for cancellation of bail.

¶99

The right of the parties to move this court in case of breach of terms is reserved.

¶100

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶101

Anticipatory bail application is allowed as above. ”

¶102

A reading of the said bail order dated 9.1.2019 rendered by this Court would make it clear that this Court also proceeded on the premise as if all the parties have settled the disputes as per the abovesaid mediation settlement agreement, presumably on the basis of the stand taken by the respective parties. This Court said that the parties will be bound by the terms of agreement and that the said agreement is accepted and taken on record by this Court and that form part of the said bail order, and that both sides can rely on it for all intents and purposes. In case of default of any clause, the aggrieved person will be entitled to seek appropriate reliefs for the enforcement of the agreement, etc.

¶103

It appears that the accused persons have not complied with the terms and conditions of the said mediation settlement agreement. The stand of accused No.1 (the present petitioner herein) is that though he was also referred to the mediation process in the abovesaid case, he has not signed the abovesaid mediation agreement and that his case stands on a different footing compared to the factual situation in the case of accused

¶104

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶105

No.2 in this case.

¶106

The matter in the connected Crime No. 80/2018 of Attingal Police Station, was also subsequently referred to the Mediation Centre by this Court and all parties thereto have participated therein in the said process, and it is now reported by the Mediation Centre that the said mediation process has also failed.

¶107

The abovesaid anticipatory bail order which has been granted by this Court on 9.1.2019 has worked it itself out and merely on the breach of agreed terms and conditions, it cannot be said that bail so granted is liable to be cancelled. Bail so granted is only subject to the conditions mentioned therein. Therefore the anticipatory bail granted to the accused persons has worked out itself, and only if there is any violation of any of the specific conditions enumerated in the last two pages of the bail order will there be a cause of action for considering the issue of cancellation of bail. However the conduct of parties in projecting a case before this Court in the abovesaid anticipatory bail proceedings (B.A. No.5043/2018) as if parties have amicably settled entire

¶108

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶109

disputes, etc, is something to be seriously taken note regarding the failure of the parties to adhere to the terms and conditions. This is a crucial factual aspect which has to be taken into consideration by this Court for the purpose of deciding the issue as to whether or not the extra ordinary discretion conferred under to this Court by way of inherent powers as per Sec.482 of the Cr.P.C., is to be exercised for considering the plea for quashment of the impugned criminal proceedings. It is all the more so the case is even now at the stage of crime investigation. When this Court had liberally taken the view that anticipatory bail is to be granted, more so particularly, in view of the fact that the parties represented that they have fully and amicably settled the disputes on the basis of the abovesaid mediation settlement agreement, the subsequent conduct of the parties should certainly to be taken into account by this Court in deciding whether extra ordinary discretion is to be exercised or not.

¶110

Of course, in a statutory remedy like discharge or in a further revisional challenge thereto etc, such aspects may not be relevant. But in exercise of the extra ordinary discretion conferred

¶111

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶112

on this Court as per provisions as in Articles 226/227 of the Constitution of India or as per Sec.482 of the Cr.P.C. etc, the said aspect regarding the conduct of the parties is highly relevant and as the basic thrust of this Court in the exercise of inherent jurisdiction is to ensure that justice is rendered to the parties and to avoid serious miscarriage of justice and that discretionary remedy need not be afforded to persons who have not come with clean hands. In the light of these aspects, more so particularly in view of the conduct of the parties which led to the failure of the mediation agreement, this Court is of the considered view that it may not be right and proper for this Court to exercise the discretion so as to quash the impugned criminal proceedings.

¶113

The case is now at the threshold stage of investigation, and therefore it is for the investigating agency concerned to proceed with the matter further and to finalise the investigation without any further delay, so as to file the final report. The abovesaid observations made by this Court regarding the conduct of parties shall not in any manner affect the investigation process or any subsequent proceedings in relation to this case. The

¶114

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶115

investigating agency is to carry out investigation fairly and efficaciously so that the truth of the matter is ferreted out and then investigation could be completed and the final report is filed before the competent criminal court without any further delay.

¶116

There is yet another aspect of the matter. Crime No.80/2018 of Attingal Police Station is in relation to the personal grievances of the defacto complainant therein. Whereas the matter in Crime No.1562/2018 of Kottarakkara Police Station is in relation to the personal grievances of the defacto complainant therein, who is a different person. Though the transactions appear to be broadly similar, it appears that in view of the averments in the FIS in relation to Crime No.80/2018 of Attingal Police Station, some allegations are also made in that case regarding the transaction in relation to the matter in Crime No.1562/2018 of Kottarakkara Police Station. Therefore there could be some overlapping of the subject matter in these crimes.

¶117

The learned Prosecutor was asked to get instructions and today when the matter has been taken up, the learned Prosecutor on the basis of instructions of the two respective Investigating Officers in these two crimes would submit that the

¶118

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶119

investigation in relation to Crime No.80/2018 of Attingal Police Station, would be confined only to the personal grievances of the defacto complainant therein and will not in any matter would extend to any allegations in relation to the personal grievances of the defacto complainant in Crime No. 1562/2018 of Kottarakkara Police Station. Further that, the investigation in relation to Crime No. 1562/2018 of Kottarakkara Police Station, will be confined by the investigating agency only in respect of matters relating to the personal grievances of the defacto complainant therein, and that any overlapping of the subject matter of investigation of separate cases should be scrupulously avoided by the respective Investigating Officers concerned.

¶120

The said submissions made on behalf of the Investigating Officers concerned in these two crimes are recorded. The Investigating Officers concerned should ensure that they should fully and effectively comply with the said undertaking so that there is no such unnecessary and improper overlapping of the subject matter of investigation in these two separate cases, which are actually confined only to the respective personal grievances of the respective defacto complainants therein.

¶121

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶122

Accordingly it is ordered that the Investigating Officer concerned in Crime No. 1562/2018 of Kottarakkara Police Station will take all reasonable endeavours possible to ensure that the investigation in that crime is completed without much delay, so that after completing all the necessary formalities, the final report is filed before the competent criminal court without much delay.

¶123

The learned Prosecutor would submit that necessary instructions will be given to the Investigating Officer concerned to complete the investigation without much delay preferably within a period of 4 months from the date of production of a certified copy of this order.

¶124

In case any of the parties have any legally justiciable grievances after the filing of the final report in this case, it is for them to pursue their remedies in the manner known to law, and no observations and findings in this order will in any manner, preclude them from taking resort to the remedies that may be available to them as per law.

¶125

With these observations and directions, the above Crl.M.C. No. 8677 of 2018 will stand dismissed.

¶126

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶127

B.A. No. 413 of 2019, Crl.M.C. No. 278 of 2019 & Crl.M.C. No.8656 of 2018

¶128

B.A. No. 413 of 2019 has been filed by accused No.2 in

¶129

Crime No.80/2018 of Attingal Police Station for offences punishable under Sec.420 r/w Sec.34 of the IPC. The petitioner seeks grant of anticipatory bail in relation to his involvement in the said crime. It is beyond any dispute that it is common ground that both the accused persons in Crime No.80/2018 has previously filed anticipatory bail application as B.A. No. 6508/2018 before this Court, and this Court as per order dated 30.10.2018 had dismissed B.A. No. 6508/2018 filed by the accused persons. A copy of this order has been produced as Anx.A2 in B.A. No. 6508/2018 which reads as follows:

¶130

“This application is filed under §438 of the Cr.P.C.

¶131

2. The applicants herein are the accused Nos. 2 and 1 respectively in Crime No. 80 of 2018 of the Attingal Police Station. In the aforesaid crime, they are being proceeded against for having committed offences punishable under §420 r/w §34 of the Indian Penal Code.

¶132

3. According to the de facto complainant, the 1^st applicant herein is running a clinic at Kadakkal and is a doctor by profession. He approached the de facto complainant and offered to provide admission for MBBS course in a College at Bangalore and demanded money. She alleges that a sum of Rs. 48 lakhs was transferred to the account of the applicants herein and a sum of Rs.5 lakhs was paid by way of cash. However, after receiving the entire amount, the accused failed to arrange the admission. Based on these allegations, a complaint was filed

¶133

..19..

¶134

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶135

and the subject crime was registered.

¶136

4. The learned counsel appearing for the applicants would contend that the allegations are not true. According to the learned counsel, the applicants herein had direct contact with BGS Global Medical College and the amount which was received was handed over to the Medical College authorities for securing admission. However, the affiliation to the said college was cancelled. The learned counsel would contend that the applicants herein were summoned before the DYSP, Chengannoor and negotiation was held. He contends that substantial amounts were repaid.

¶137

5. The learned Public Prosecutor has opposed the prayer and it is submitted that the investigating officer recorded the statement of the college authorities, who stated that the college has nothing to do with the applicants herein and they were not authorised to collect any amount.

¶138

6. In the course of proceedings, the de facto complainant filed an application seeking intervention. The learned counsel appearing for the de facto complainant was permitted to advance arguments. The learned counsel has produced Annexure-A1 statement of accounts of the de facto complainant and it is contended that the statement would reveal that the entire amount less Rs.5 Lakhs was transferred through the account in the year 2015. The entire amount was misappropriated by the applicants is the submission.

¶139

7. I have considered the submissions advanced and have gone through the materials made available. Having gone through the materials on record and also the case diary, it appears that there are ample materials pointing to the complicity of the applicants. I am not inclined to allow this application and grant an order of pre-arrest bail.

¶140

8. The applicants are directed to surrender before the Investigating Officer or court having jurisdiction and seek regular bail. If an application for bail is preferred,the same shall be considered and orders shall be passed expeditiously and on its merits.

¶141

This application is dismissed. ”

¶142

19. Since this Court has already dismissed the anticipatory

¶143

bail plea of both the accused persons, it may not be right and proper for this Court to reconsider and permit the petitioner

¶144

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶145

herein (A2) to re-agitate the issue, as to do so would be highly improper and wrong, and therefore this Court would respectfully concur with the considered views arrived by this Court in the rendering of the order dated 30.10.2018 in B.A. No. 6508/2018, whereby the anticipatory bail plea of the accused persons in Crime No.80/2018 of Attingal Police Station has been dismissed by this Court.

¶146

However, Sri.N.Bija Krishna, learned Advocate appearing for the applicant in B.A. No. 413/2019 (A2 in Crime No.80/2018 of Attingal Police Station) as well as Sri.M.T.Suresh Kumar, learned Advocate appearing for the sole petitioner in Crl.M.C.No.278/2019 (A1 in Crime No.80/2018 of Attingal Police Station) would submit that this Court as per order dated 30.10.2018 in B.A. No. 6508/2018 had granted liberty to the said accused persons concerned to surrender before the Investigating Officer concerned, within the time limit mentioned therein, so that their bail application could be considered and decided by the learned Magistrate on the same day of their production after the completion of the interrogation process, and that this Court may

¶147

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶148

exercise the discretion to extent the time limit for surrender of accused persons as directed in Anx.A2 order.

¶149

The prosecution agency does not appear to have any serious objection to the said course of action inasmuch as the accused persons in this crime have now volunteered to surrender before the Investigating Officer concerned without any further delay. Accordingly, in exercise of the discretionary powers conferred on this Court, and with the consent of both sides it is ordered that the time limit stipulated in the order dated 30.10.2018 rendered by this court in B.A. No. 6508/2018 for the surrender of two accused persons in Crime No.80/2018 of Attingal Police Station, will stand extended by a further period of 2 weeks from the date notified for receiving a certified copy of this order, as last chance, failing which the I.O. may proceed further in accordance with law.

¶150

In case the accused persons so surrender within the time limit, the Investigating Officer will subject them to interrogation process, and after completion of the interrogation process, the accused persons may be produced before the jurisdictional Magistrate Court concerned, whereupon the learned Magistrate may consider and pass orders on the bail application of

¶151

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶152

the accused persons on the same day of their production, after affording reasonable opportunity of being heard to the learned advocates appearing for the accused persons and the learned Public Prosecutor appearing for the prosecution agency, and after taking due note of the facts and attendant circumstances of the case. However, it is made clear that the main prayer in B.A. No. 413/2019 for grant of anticipatory bail will stand rejected.

¶153

The sole petitioner in Crl.M.C. No.278/2019 and the sole petitioner in Crl.M.C. No. 8656/2018 are accused 1 and 2 respectively in the abovesaid Crime No.80/2018 of Attingal Police Station, which has been registered for offences punishable under Sec.420 r/w Sec.34 of the IPC. According to the defacto complainant in this case, A1 is running a clinic at Kadakkal and is a doctor by profession and he approaches the defacto complainant and offered to provide admission to MBBS course in a private unaided college at Bangalore and demanded money for that purpose and further a sum of of Rupees Forty Eight Lakhs was transferred to the account of the accused persons and a sum of Rupees Five Lakhs was paid by cash. However after receiving the

¶154

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶155

entire amounts, the accused persons had failed to arrange admission and they have not even cared to refund the money. It is on the basis of this allegation that the instant complaint/FIS has been filed which has led to the registration of the instant Crime No.80/2018 of Attingal Police Station, for the abovesaid offences.

¶156

On the basis of the submissions made by the accused persons in Crime No.80/2018 of Attingal Police Station, as well as that of the defacto complainant, this court had permitted the said parties to endeavour for mediatory efforts. Now it is reported by the Mediation Centre as per report dated 2.4.2019 that the mediation process in relation to matter in Crime No.80/2018 of Attingal Police Station, Thiruvananthapuram, has turned out to be a failure as the matter is not settled. The anticipatory bail plea made by the accused persons in this Crime have already been rejected by this Court as stated herein above. The case is only at the threshold stage of crime investigation.

¶157

After hearing both sides and after careful evaluation of the facts and circumstances of the case, this court is of the considered view that the interest of justice would only be advanced

¶158

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶159

by giving liberty to the investigating agency to proceed further in the investigation process, so as to complete the investigation process and to file the final report before the competent criminal court without any further delay.

¶160

The learned Prosecutor would submit that necessary instructions will be given to the Investigating Officer in relation to this crime to expedite the investigation process, so that the investigation is duly completed, and after completing all the necessary formalities the final report is filed before the competent court without much delay within a period of 4 months from the date of production of a certified copy of this order.

¶161

The abovesaid submission made by the prosecution agency undertaking to avoid overlapping of investigation in these two crimes, will be applicable in this case as well, and it shall be ensured by the Investigating Officer concerned that the subject matter of the investigation in Crime No.80/2018 of Attingal Police Station shall be confined in respect of the personal grievances of the defacto complainant in that case. So also the same direction is applicable in the case of investigation in relation to Crime

¶162

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶163

No.1562/2018 of Kottarakkara Police Station, about which separate orders have already been rendered by this Court herein above.

¶164

It is made clear that this Court has not entered into the merits of the controversy in any manner, and none of the observations and findings made by this Court will in any manner preclude the accused persons, the prosecution agency or the defacto complainant from raising their appropriate contentions in appropriate proceedings, and after the submission of the final report, in case any of the parties have any justiciable grievances thereto, it is for them to work out their remedies in the manner known to law. In such eventuality, such proceedings will have to be independently decided by the appropriate forum, untrammeled and uninfluenced by any of the observations and findings in this order.

¶165

With these observations and directions, B.A. No.

¶166

413/2019 will stand dismissed, and Crl.M.C. Nos. 278/2019 and 8656/2018 will stand disposed of.

¶167

Sd/-

¶168

ALEXANDER THOMAS, JUDGE

¶169

MMG

¶170

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶171

..26..

¶172

APPENDIX OF CRL.M.C.NO.8677/2018

¶173

PETITIONER'S EXHIBITS:

¶174

ANNEXURE A1	CERTIFIED C	OPY OF	THE F.	I.R. IN	CRIME
	NO.1562/201 POLICE STAT	8 OF ION.	THE	KOTTA	RAKKARA
ANNEXURE A2	CERTIFIED	COPY	OF	THE	FIRST
	INFORMATION	STAT	EMENT	IN	CRIME
	NO.1562/201 POLICE STAT	8 OF ION.	THE	KOTTA	RAKKARA
ANNEXURE A3	TRUE COPY 08.07.2016/ PETITIONER CHIEF, ALAP	OF TH 13.07.20 BEFORE PUZHA.	E COM 16 SUB THE DI	PLAINT MITTED STRICT	DATED BY THE POLICE
ANNEXURE A4	TRUE COPY NO.140/2017 STATION.	OF TH OF THE	E F.I KURAT	.R IN HIKADU	CRIME POLICE
ANNEXURE A5	TRUE COPY STATEMENT I KURATHIKADU	OF THE N CRIME POLICE	FIRS NO.14 STATIO	T INFO 0/2017 N.	RMATION OF THE
ANNEXURE A6	TRUE COPY NO.80/2018	OF TH OF ATTIN	E F.I GAL PO	.R IN LICE ST	CRIME ATION.

¶175

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶176

APPENDIX OF B.A.NO.413/2019

¶177

PETITIONER'S EXHIBITS:

¶178

ANNEXURE A1 A TRUE COPY OF ORDER IN BAIL APPLICATION NO.5043 OF 2018 DATED 9.1.2019 ANNEXURE A2 A COPY OF THE ORDER DATED 30.10.2018 IN B.A. NO. 6508/2018

¶179

..27..

¶180

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶181

APPENDIX OF CRL.M.C.NO.278/2019

¶182

PETITIONER'S EXHIBITS:

¶183

ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO.140 OF 2017 OF KURATHIKAD POLICE STATION DATED 01.02.2017.

¶184

ANNEXURE A2 TRUE COPY OF THE FIR AND FIS IN CRIME NO.80 OF 2018 IN ATTINGAL POLICE STATION,DATED 09.01.2018.

¶185

ANNEXURE A3 TRUE COPY OF THE JUDGMENT DATED 24-11-2017 OF THIS HON'BLE COURT IN WP(C)36058 OF 2017

¶186

ANNEXURE A4 TRUE COPY OF THE CHEQUE DATED 5-3-2016 DRAWN ON CITY BANK.

¶187

..28..

¶188

Crl.M.C. No. 8677/2018, B.A. No. 413 /2019, Crl.M.C. No. 278/2019 & Crl.M.C. No. 8656/2018

¶189

..29..

¶190

APPENDIX OF CRL.M.C.NO.8656/2018

¶191

PETITIONER'S EXHIBITS:

¶192

ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO.140 OF 2017 OF KURATHIKAD POLICE STATION DATED 01.02.2017.

¶193

ANNEXURE A2 CERTIFIED COPY OF THE FIRST INFORMATION STATEMENT IN CRIME NO.140/2017 OF THE KURATHIKADU POLICE STATION.

¶194

ANNEXURE A3 CERTIFIED COPY OF THE FIR IN CRIME NO.80/2018 OF ATTINGAL POLICE STATION.

¶195

ANNEXURE A4 TRUE COPY OF THE COMPLAINT DATED 8.7.2016/13.7.2016 SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT POLICE CHIEF, ALAPPUZHA.

Saju Bin Salim v. State of Kerala

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Saju Bin Salim v. State of Kerala

Case brief

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