Baburaj K vs State Of Kerala

K. Babu, J

This is an application filed under Section 438 of the Code of Criminal Procedure.

The petitioner is accused No.6 in Crime No.1/2023 of VACB, Kasargod. He is alleged to have committed offences punishable under Sections 467, 468, 471, 420 and 409 of the IPC and Section 13(1)(a) r/w 13(2) of the PC Act.

The petitioner was the Branch Manager of the KSFE Kanhangad Branch. Accused Nos.1 to 5 were subscribers to various chitties conducted by the KSFE, Kanhangad Branch. The petitioner conspired with accused Nos. 1 to 5, with intent to make wrongful gain, made alterations in the original title deeds of immovable properties offered as security for releasing the prized amount. Accused No.2 obtained title deed of the immovable property owned by accused No.1 through accused No.5. They entered into a criminal conspiracy with the petitioner and other accused and created a forged title deed bearing No.3234/1996 of Sub Registrar’s Office, Hosdurg in respect of 47 cents of land in Re-survey No.12/2 of Periya Village by changing the schedule of property of the original title deed. In the schedule of the deed the land at Ayampara in Periya Village was replaced with another immovable property near Periya Central University. Accused No.2 also produced forged location certificates and location sketch and used them as genuine. The petitioner accepted all these documents without any verification. A valuation team headed by the petitioner inspected the property and assessed the value of the land near the Central University at Rs.1 Crore 41 Lakhs instead of the land at Ayampara which has a value of less than Rs.7 Lakhs. The landed property comprised in re-survey No.150/4B is situated at Periya Chalinkal Motta in Periya Village. One Balakrishnan Nair and Narayanan Nair were the owners-in-possession of that property. Accused No.1 does not have any land in the location in respect of which valuation was done and report was prepared by the team headed by the petitioner.

The Manager of the KSFE Kanjangad Branch lodged a complaint against accused Nos.1 to 3 before the SHO, Hosdurg alleging forgery and cheating. Hosdurg Police registered Crime No.194/2021 alleging offences punishable under 467, 468 and 420 of the IPC on 22.02.2021. During the course of investigation by the Hosdurg Police, the offences under Sections 409 and 471 of IPC and 13(1)(d) r/w 13(2) of the PC Act were revealed. Based on the direction of the Additional Chief Secretary (Home and Vigilance), the Director, VACB ordered further investigation in the matter and the VACB, Kasargod Unit registered V.C.No.1/2023.

Heard the learned Counsel for the petitioner and the learned Senior Public Prosecutor.

The learned Counsel for the petitioner submitted that the petitioner is innocent of the allegations. It is further submitted that the petitioner did the alleged acts based on the opinion given by the Legal Advisor concerned.

The learned Senior Public Prosecutor submitted that the investigation is in the preliminary stage and grant of pre-arrest bail to the petitioner will affect the very purpose of the investigation.

While considering the scope of jurisdiction under Section 438 Cr.P.C., the Constitution Bench of the Apex Court in Gurbaksh Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] held thus:

“31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216] , which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.”

In Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694] the Apex Court held thus:-

“113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the B.A.Nos.5010 of 2021 & Connected cases 40 accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”

(In Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1]) the declaration of law in Siddharam Satlingappa Mhetre that no condition can be imposed while granting order of anticipatory bail alone was overruled)

In Sushila Aggarwal, the Constitution Bench of the Apex Court, following the decision in Gurbaksh Singh Sibbia, held that while considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc.

The prosecution has no case that the petitioner is absconding. There are no materials to show that the petitioner attempted to influence the course of investigation or tamper with the evidence.

Having considered the entire circumstances on the touchstone of the precedents mentioned above, I am of the view that the petitioner/accused No.6 is entitled to anticipatory bail.

In the result, the bail application is allowed as follows:

(i) The petitioner shall appear before the Investigating Officer on 15.04.2024 between 10.00 AM and 11.00 AM for interrogation.

(ii) The Investigating Officer is directed to release the petitioner on bail, in the event of his arrest, on his executing bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like sum.

(iii) The petitioner shall appear before the Investigating Officer on all Saturdays between 10.00 AM and 11.00 AM for a period of three months or till the final report is filed, whichever is earlier.

(iv) The petitioner shall not influence the witnesses in this case or tamper with the evidence.

(v) He shall fully co-operate with the investigation, including subjecting himself to `deemed custody’, as observed in Gurbaksh Singh Sibbia & Ors. v. State of Punjab [(1980) 2 SCC 565] and Sushila Aggarwal & Others v. State (NCT of Delhi) and Ors. (AIR 2020 SC 831), for the purpose of discovery or identification, if any.