Kerala High Court
Hisham A P vs State Of Kerala on 28 June, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
BAIL APPL. NO. 4193 OF 2024
CRIME NO.1295/2020 OF Kasaragod Police Station, Kasargod
PETITIONER/ACCUSED NO.6:
HISHAM A P, AGED 38 YEARS SON OF POOKOYA THANGAL
THAYILAKANDI ABDUL, T K HOUSE, CHANDERA, MANIYAT,
KASARAGODE DISTRICT, KERALA, PIN - 671310
BY ADVS. C.MURALIKRISHNAN (PAYYANUR) ABRAHAM GEORGE
JACOB
RESPONDENTS/STATE&COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 MUHAMMAD C V, AGED 65 YEARS SON OF POKKAR
HAJI,CHETAYAM VEETIL HOUSE, KUTTIPRAM, VADAKARA,
NARIKKATERI, KOZHIKODE DISTRICT, KERALA, PIN - 673101
sr pp smt seetha s
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
28.06.2024, ALONG WITH Bail Appl..4192/2024, 4183/2024 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BAIL APPL. NO.4193 OF 2024
& connected cases
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
BAIL APPL. NO. 4181 OF 2024
CRIME NO.892/2020 OF Kasaragod Police Station, Kasargod
PETITIONER/ACCUSED NO.6:
HISHAM A P, AGED 38 YEARS SON OF POOKOYA THANGAL
THAYILAKANDI ABDUL, T K HOUSE, CHANDERA, MANIYAT,
KASARAGODE DISTRICT, KERALA, PIN - 671310
BY ADVS. C.MURALIKRISHNAN (PAYYANUR) ABRAHAM GEORGE
JACOB
RESPONDENTS/SATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 ABDULLA MOIDEEN KUNHI, AGED 66 YEARS SON OF MOIDEEN
KUNHI, MASHREEK MANZIL, UDMA, PALLIKKARA, KASARAGOD,
KERALA, PIN - 671319
sr pp smt seetha s
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
28.06.2024, ALONG WITH Bail Appl..4193/2024 AND CONNECTED
CASES AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
BAIL APPL. NO.4193 OF 2024
& connected cases
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
BAIL APPL. NO. 4183 OF 2024
CRIME NO.1177/2020 OF Kasaragod Police Station, Kasargod
PETITIONER/ACCUSED NO.6:
HISHAM A P, AGED 38 YEARS SON OF POOKOYA THANGAL
THAYILAKANDI ABDUL, T K HOUSE, CHANDERA, MANIYAT,
KASARAGODE DISTRICT, KERALA, PIN - 671310
BY ADVS. C.MURALIKRISHNAN (PAYYANUR) ABRAHAM GEORGE
JACOB
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 ABDUL SALAM VANNATHIKKANANM, AGED 55 YEARS SON OF
MUHAMMED KUNHI, KALLAR, RAJAPURAM, VELLARIKKUND,
KALLAR KASARAGODE, KERALA, PIN - 671533
sr pp smt seetha s
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 28.06.2024, ALONG WITH Bail Appl..4193/2024 AND
CONNECTED CASES AND CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO.4193 OF 2024
& connected cases
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
BAIL APPL. NO. 4186 OF 2024
CRIME NO.1180/2020 OF Kasaragod Police Station, Kasargod
PETITIONER/ACCUSED NO.6:
HISHAM A P, AGED 38 YEARS SON OF POOKOYA THANGAL
THAYILAKANDI ABDUL, T K HOUSE, CHANDERA, MANIYAT,
KASARAGODE DISTRICT, KERALA, PIN - 671310
BY ADVS. C.MURALIKRISHNAN (PAYYANUR) ABRAHAM GEORGE
JACOB
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 ABDUL NASAR C M, AGED 52 YEARS SON OF ABOOBACKER C
M,KALLAR, MALAKALLU, KALLAR, KASARAGODE DISTRICT,
KERALA., PIN - 671532
BY SMT.NEEMA T.V. - SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 28.06.2024, ALONG WITH Bail Appl..4193/2024 AND
CONNECTED CASES AND CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO.4193 OF 2024
& connected cases
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
BAIL APPL. NO. 4192 OF 2024
CRIME NO.1235/2020 OF Kasaragod Police Station, Kasargod
PETITIONER/ACCUSED NO.6
HISHAM A P, AGED 38 YEARS SON OF POOKOYA THANGAL
THAYILAKANDI ABDUL, T K HOUSE, CHANDERA, MANIYAT,
KASARAGODE DISTRICT, KERALA, PIN - 671310
BY ADVS. C.MURALIKRISHNAN (PAYYANUR) ABRAHAM GEORGE
JACOB
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 SAINABA K P, AGED 55 YEARS DAUGHTER OF ABDUL RAHIMAN,
RAHEES MANZIL, KAKUNNAM THATTARKADAVU, HOSDURG,
KASARAGODE, KERALA, PIN - 671315
sr pp smt seetha s
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 28.06.2024, ALONG WITH Bail Appl..4193/2024 AND
CONNECTED CASES AND CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO.4193 OF 2024
& connected cases
6
Dated this the 28th day of June, 2024
ORDER
The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre- arrest bail.
2. The petitioner is the 9th accused in Crime No.1295 of 2020 of the Kasaragod Police Station, Kasaragod registered against the accused, for allegedly committing the offences punishable under Sections 406, 409 and 420 read with Section 34 of the Indian Penal Code (in short, 'IPC') and Section 5 of the Kerala Protection of Interests of Depositors in Financial Establishments Act and Section 3 read with Section 21 and 23 of the Banning of Unregulated Deposit Schemes Act, 2019.
3. The crux of the prosecution case is that: the accused, in furtherance of their common intention, between the period from 11.03.2011 to 31.01.2011, had induced the defacto complainant to deposit Rs.10 lakh in Khamar Fashion Gold International Pvt. Ltd, by proposing BAIL APPL. NO.4193 OF 2024 & connected cases 7 him of good dividend. However, the accused failed to pay the dividend or return the capital. Thus, the accused have committed the above offences.
4. Heard; Sri. Muralikrishnan C., the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor.
5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner's involvement in the case. The petitioner is not the Director of the Company and is not in charge of the administration and management of the company. The petitioner's custodial interrogation is not necessary and no recovery is to be affected. Hence, the petitioner is entitled for an order of pre-arrest bail.
6. The learned Public Prosecutor seriously opposed the bail application. She submitted that the petitioner is an inveterate offender. The petitioner is involved in several crimes of a similar nature in different parts of the BAIL APPL. NO.4193 OF 2024 & connected cases 8 country. The petitioner is the Director of the company and he along with the other Directors of the company have cheated several depositors and made unlawful gain. It is reliably learnt that the petitioner is abroad. The petitioner has not revealed any of these aspects in the bail application. The petitioner's custodial interrogation is necessary and recovery is to be affected. If the petitioner is granted an order of pre-arrest bail, it would torpedo the entire investigation. Hence, the application may be dismissed.
7. The prosecution allegation against the petitioner is that, he along with the other accused, were running a private limited company and they, received deposits from the public on the assurance of giving them dividends. However, the accused failed to give dividends or return the capital.
8. When the application came up for consideration on 24.06.2024, the learned Public Prosecutor submitted that the petitioner is abroad.
9. In the light of the above submission and the BAIL APPL. NO.4193 OF 2024 & connected cases 9 law laid down by the Division Bench of this Court in Anu Mathew v. State of Kerala [2023 (3) KHC 151], the learned counsel for the petitioner was directed to file a memo as to whether the petitioner is in India or abroad.
10. The learned counsel for the petitioner has filed a memo dated 26.06.2024, stating that the petitioner went abroad on 10.10.2020 and that he would return to India on 29.06.2024.
11. True, it stands substantiated that the petitioner was abroad even prior to the filing of the bail application. But, this aspect has been suppressed in the bail application.
12. In Jagan Mohan Reddy Y.S. v. Central Bureau of Investigation [2013 KHC 4402], the Hon'ble Supreme Court has categorically declared that economic offences constitute a separate class and need to be visited with a different approach when it comes to the question of bail. The economic offences having deep- rooted conspiracies, involving huge loss of public funds and need to be viewed seriously, which has to be BAIL APPL. NO.4193 OF 2024 & connected cases 10 considered as grave offences affecting the country's economy as a whole.
13. In Himanshu Chandravadan Desai and others v. State of Gujarat [2006 (2) SCC (Cri) 143] the Hon'ble Supreme Court observed that the Courts should be circumspect and cautious in granting aniticipatory bail in crimes involving a conspiracy to cheat and defraud public institution in a systematic manner.
14. In Jai Prakash Singh v. State of Bihar and another, [(2012) 4 SCC 379] the Hon'ble Supreme Court has reiterated the legal position that, an order of pre- arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused.
15. In P. Chidambaram v. Directorate of BAIL APPL. NO.4193 OF 2024 & connected cases 11 Enforcement [(2019) 9 SCC 24], the Hon'ble Supreme Court has observed in the following lines:
"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 prearrest 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 an anxious consideration of the facts, rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness and gravity of the economic offences alleged against the petitioner, the petitioner is a person with BAIL APPL. NO.4193 OF 2024 & connected cases 12 criminal antecedents, because he is involved in several crimes registered by different police stations in the State, that the petitioner is abroad since 2020 and this crucial aspect has been suppressed in the bail applications, that the petitioner's custodial interrogation is necessary and recovery is to be affected, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Sec.438 of the Code. Hence, I am of the firm view that the petitioner is not entitled to an order of pre-arrest bail.
Resultantly, the bail application is dismissed.
Sd/-
C.S.DIAS,JUDGE SSK/27/06 BAIL APPL. NO.4193 OF 2024 & connected cases 13 APPENDIX OF BAIL APPL. 4193/2024 PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE FIR NO.1295/2020 OF KASARAGODE POLICE STATION, KASARGODE DISTRICT. BAIL APPL. NO.4193 OF 2024 & connected cases 14 APPENDIX OF BAIL APPL. 4186/2024 PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE FIR NO.1180/2020 OF KASARAGODE POLICE STATION, KASARGODE DISTRICT. BAIL APPL. NO.4193 OF 2024 & connected cases 15 APPENDIX OF BAIL APPL. 4181/2024 PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE FIR NO.892/2020 OF KASARAGODE POLICE STATION, KASARGODE DISTRICT. BAIL APPL. NO.4193 OF 2024 & connected cases 16 APPENDIX OF BAIL APPL. 4183/2024 PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE FIR NO.1177/2020 OF KASARAGODE POLICE STATION, KASARGODE DISTRICT. BAIL APPL. NO.4193 OF 2024 & connected cases 17 APPENDIX OF BAIL APPL. 4192/2024 PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE FIR NO.1235/2020 OF KASARAGODE POLICE STATION, KASARGODE DISTRICT.