IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 13TH MAY 2008 / 23RD VAISAKHA 1930 Bail Appl..No. 3213 of 2008 -------------------------------------- PETITIONER: ------------------- SANTHOSH MADHAVAN @ AMRITACHYTHANYA, D/O.NO.48,ROYAL STADIUM MANSION, KADVANTHARA,COCHIN. BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.), SRI.PRADEESH CHACKO, SRI.A.RAJASIMHAN, SRI.PRATHAP NAIR. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY THE SUPERINTENDENT OF POLICE, CBI,COCHIN. R1 BY DIRECTOR GENERAL OF PROSECUTION SRI. P.G. THAMPY, R2 BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13/05/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- B.A.No. 3213 of 2008 --------------------------------------------- Dated this the 13th day of May, 2008 O R D E R This is an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure by one Santhosh Madhavan @ Amritachythanya, Door No.4B, Royal Stadium Mansion, Kadvanthra-Cochin. According to the petitioner and as per his reliable information, the Kerala Police has decided to register a case against him for cheating and fraud based on a formal complaint lodged by a lady Smt.Sarafin Edwin from Dubai with the Inspector General of Police, Ernakulam and the City Police Commissioner through E-mail and Fax on Saturday night alleging that the petitioner had obtained Rs.40 lakhs from her in the year 2002 for taking her into his hotel business in Dubai. It is the further case of the petitioner that without any complaint, the Kerala Police have raided the petitioner's residential apartment, the Santhitheeram Guest house and his home at Kattappana and unauthorisedly seized some articles from there and made BA NO.3213 OF 2008 :-2-: sensation out of it. Thus, according to the petitioner, the entire allegations raised against the petitioner by the media and now in the so called formal complaint by the Dubai lady by E-mail to the Kerala Police are false and frivolous and motivated by the hidden agenda of the respective interest. The petitioner is totally innocent of all these allegations, according to the petitioner. The petitioner has only made use of his talents in a perfectly bona fide manner and he has not cheated anybody, the petitioner says. It is also stated that the Santhitheeram Guest House, in fact, a semi commercial venture and all real estate investments that the petitioner had made are out of his own hard earned money and the money raised from NRIs. and other friends and well wishers. It is the case of the petitioner that people who are envious to him are behind the conspiracy against him. In short, according to the petitioner, the present case is only an illustration of media invasion into privacy, if not described as media rape which endanger any citizen in this country is potentially facing. Therefore, according BA NO.3213 OF 2008 :-3-: to the petitioner, it is essential and expedient in the interest of justice that this Court be pleased to enlarge the petitioner on anticipatory bail lest the petitioner should be subjected to irreparable injury and hardship. He had also undertaken that he is willing to abide by any condition in granting bail and the petitioner is ready to co-operate with the investigation and will not abscond from the process of law. Thus he prays for an order of anticipatory bail under Section 438 of the Code of Criminal Procedure. 2. The above petition for anticipatory bail is dated 12.5.2008 which was filed on 12.5.2008 itself under Section 8 of the Kerala High Court Act. As usual a copy of the petition is served on the State and another copy is served on Adv.Sri.M.V.S.Namboothiri, Standing Counsel for the C.B.I. who is the second respondent in the above petition. 3. The above case is listed today as item No.606 for admission. Before rising the Court for lunch, Mr.Gopakumaran Nair, learned Senior counsel BA NO.3213 OF 2008 :-4-: appearing for the petitioner mentioned in the Bar that he had filed this petition for anticipatory bail and urgent order is necessary for the same and hence the same may be taken up for consideration. On such submission, the learned Director General of Prosecution Sri.P.G.Thampi who is in charge of the case submits that the petitioner herein is already arrested today morning and hence this petition has become infructuous and no order is necessary other than dismissing the same as infructuous. Counsel for the petitioner was very much interested in having a detailed hearing and accordingly the matter was adjourned for further consideration at 3 p.m. today after other cases are over. Thus, accordingly, the matter is taken up for hearing at 3 p.m.today. 4. Learned counsel for the petitioner submits that in the light of the specific provisions contained in Section 438 of the Cr.P.C., even the petitioner is arrested this Court can grant anticipatory bail. It is also relevant to take note of the fact that another Criminal Miscellaneous Application is filed as bench mark in the BA NO.3213 OF 2008 :-5-: above bail application with a prayer for an order to release the petitioner forthwith on an ad interim order of anticipatory bail in the event of his arrest, pending final hearing and disposal of the above bail application. Thus, the prayer in the interlocutory application is also to release the petitioner forthwith on bail, pending final hearing and for disposal of the above bail application on any condition as this Court deems fit and proper. The Registry has not numbered the above Crl.M.A., since the bail application is pending and hence, the Crl.M.A. is not maintainable. During the course of argument, the learned counsel for the petitioner submits that the petitioner had approached this Court by filing the bail application on 12.5.2008 and when the matter was pending for consideration, he is arrested and even then he is entitled to get release on anticipatory bail. According to the counsel, the arrest was made with a view to defeat the very filing of the application for anticipatory bail and such arrest was effected while the Public Prosecutor as well as the Director General of BA NO.3213 OF 2008 :-6-: Prosecution and the concerned police authorities were aware of the fact that anticipatory bail is pending consideration in this Court. Learned counsel fairly submits that there is no legal impediment in arresting a person whose application for aniticipatory bail is pending before any court. It is the further case of the petitioner that there is no proper complaint or allegation so as to arrest the petitioner. Even, according to counsel for the petitioner, the petitioner is not aware of the actual accusation against the petitioner except what gathered from the print media. Along with the petition for anticipatory bail, the petitioner has produced Annexures A1(1) to A1(10) which are the extracts of various dailies containing the news with respect to the petitioner. According to the counsel, even going by the allegations contained in the above documents, it can be seen that no offence is disclosed against the petitioner. According to the press reports, the alleged incident was taken place during the year 2002 and the so called lady Smt.Sarafin Edwin, the N.R.I. has not filed any petition BA NO.3213 OF 2008 :-7-: either before the Kerala Police or the Dubai Police. According to the petitioner, the said lady came to the petitioner along with an Arab personnel and she told the petitioner that she had faith in astrology and that she wanted to start a joint business venture with that Arab sponsor and for that purpose she wanted to know from the petitioner by astrological prediction whether it is safe and ideal for her to start a partnership business with that Arab and according to the petitioner, based upon her date of birth, face reading and palmistry, the petitioner advised her that it was somewhat good time for her to enter into joint business ventures and advised her to go ahead with her idea. For the above, the lady paid the petitioner's fee and went back with the Arab gentleman. So according to the petitioner, this is the only occasion and instance that the petitioner has got connection with the so called lady. According to the petitioner, during foreign visits, the petitioner was invited and sponsored by various persons and during those visits, the people particularly Keralites used to BA NO.3213 OF 2008 :-8-: meet him for astrological advices in connection with their familial matters and business ventures. While in Kerala, the petitioner used to pursue his avocation as Thanthri in many temples and also as an astrologer and as a master in Yoga and meditation. According to the petitioner, for raising money for starting the holistic guest house named as Santhitheeram Guest House, the petitioner has to collect Rupees one lakh each from about 75 non-resident Indians and this fund was utilised for the renovation works of the Santhitheeram Guest house. It is stated in the petition that guest house was charging per room a daily rent of Rs.1500/-. It is also stated that the life members of the guest house are given the facility of 10 days stay in an year in the guest house with holistic exercises of yoga, meditation etc. and Ayurvedi treatment including 'dhara', 'uzhichil', 'pizhichil' etc. and since the inception of the Guest House, several persons have stayed there and utilised its services and gradually the novel venture was becoming a grand success. Thus, according to counsel for the BA NO.3213 OF 2008 :-9-: petitioner, he had not committed any offence, but the Police arrested the petitioner on false accusation and allegations and therefore, prayed to pass an order in favour of the petitioner under Section 438 of the Cr.P.C. 5. I have heard Mr.P.G.Thampi, the Director General of Prosecutions and Public Prosecutor and also Mr.M.V.S.Namboothiry, the Standing Counsel for C.B.I.,who is the second respondent in this petition. 6. Resisting the prayer for anticipatory bail and interim order for bail, Mr.P.G.Thampi, the learned Director General of Prosecutions submits that virtually the petition became infructuous and the petitioner is not entitled to any relief under Section 438 of Cr.P.C. In short, according to the D.G.P., the mere filing of a petition for anticipatory bail under Section 438 of Cr.P.C. is not a bar for the Police or the Investigating Agency to arrest such a person, if he is an accused. In support of the above contentions, the learned D.G.P. placed reliance on several decisions of the Supreme Court. In the decision reported in D.K. GANESH BABU BA NO.3213 OF 2008 :-10-: V. P.T.MANOKARAN AND OTHERS [(2007)4 SCC 434), the Apex Court has held in paras 18 and 19 as follows:- “18....The direction which a court can issue under Section 438 of the Code is that in the event of arrest of an accused on an accusation of committing a non-bailable offence, he shall be released on bail subject to such conditions as the court may deem fit to impose. An application under Section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the court concerned either under Section 437 or section 439 of the Code. In the very nature of the direction which the court can issue under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code the court cannot restrain arrest. 19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the BA NO.3213 OF 2008 :-11-: investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code”. Thus according to the learned D.G.P., an interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot at any rate, be done under Section 438 of the Code. Adri Dharan Das v. State of W.B. (2005)4 SCC 303) is the another decision relied on by the D.G.P. He invites my attention to paras 17 and 18 of the above decision which BA NO.3213 OF 2008 :-12-: runs as follows:- “17.The next question is whether a court can pass an interim order not to arrest the applicant, where an application under Section 438 of the Code is pending disposal. 18. In the instant case no application for protection in terms of Section 438 of the Code is pending. What the appellant can do after surrendering to custody on 17-3-2005, is to file an application in terms of Section 437 or 439, as the case may be. Even otherwise, the direction which a court can issue under Section 438 of the Code is that in the event of arrest of an accused on an accusation of committing a non-bailable offence, he shall be released on bail subject to such conditions as the court may deem fit to impose. An application under Section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the court concerned either under Section 437 or Section 439 of the Code. In the very nature of the direction which the court can issue under Section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under Section 438 of the Code BA NO.3213 OF 2008 :-13-: the court cannot restrain arrest”. Para 35 of the decision reported in Gurubaksh Singh v. State of Punjab (AIR 1980 SC 1632) reads as follows:- “35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe” that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere `fear' is not `belief ' for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non- bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. S.438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory BA NO.3213 OF 2008 :-14-: bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for grant in such relief. It cannot leave the question for the decision of the Magistrate concerned under S.437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438. Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under S.438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. Fourthly, anticipatory bail can be granted even after in F.I.R is filed, so long as the applicant has not been arrested. Fifthly, the provisions of S.438 cannot be invoked after the arrest of the accused. The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under S.437 or Section 439 of the Code, if he wants to be released on bail in respect of BA NO.3213 OF 2008 :-15-: the offence or offences for which he is arrested”. So, according to the D.G.P., the present petition became infructuous and no order in terms of Section 438 can be granted since the petitioner is already arrested and there was no legal impediment for arresting the petitioner though he had simply filed a petition before this Court for anticipatory bail. 7. Mr.M.V.S.Namboothiri, the Standing Counsel for C.B.I., the second respondent herein, in addition to what submitted by the learned D.G.P. argued that while exercising the jurisdiction under Section 438 of the Cr.P.C., this Court cannot issue order to the effect that the applicant shall be released on bail whenever arrested for whichever offence whatsoever. According to the counsel, if such an order is passed, it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. In support of the above submission, he placed reliance on para 16 of the decision in Adri Dharan Das' Case (cited supra). BA NO.3213 OF 2008 :-16-: According to the counsel, the petitioner has miserably failed to make out a genuine case to invoke the provisions of Section 438 of Cr.P.C.. In the above decision, the Apex Court has observed that “the applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested.” Thus, according to the learned Standing Counsel, the averments contained in the petition are vague in nature and there is no material so as to substantiate the apprehension of arrest at the hands of the respondents and therefore, the petition is liable to be dismissed. Standing Counsel for the C.B.I. fairly submits that as on today, no crime is registered by the C.B.I. against the BA NO.3213 OF 2008 :-17-: petitioner and he has no material or instruction regarding any other proceedings, pending or not with the C.B.I. and submissions can be made regarding those aspects only after getting further instructions in this regard. 8. Chapter XXXIII of the Cr.P.C. deals with the provisions as to bail and bonds. Section 436 deals with bailable offences whereas Section 437 deals with taking of bail in cases of non-bailable offences are involved. Section 438 is a special provision enabling both the High Court as well as the Sessions Court to issue directions for granting of bail to a person apprehending his or her arrest. Section 439 is another provision in the same chapter giving special power to both the High Court and Sessions Court with respect to the bail. Under Section 439, the High Court as well as Sessions Court can direct any person accused of an offence and in custody to be released on bail and also impose on any condition. As per clause(b) of subsection(1) of Section 439, the High Court as well as Sessions Court can set aside or modify BA NO.3213 OF 2008 :-18-: any condition imposed by a Magistrate while granting bail to any person. As per subsection(2) of Section 439, the High Court as well as the Sessions Court can issue a direction that any person who has been released on bail under the above chapter be arrested and commit him to custody. So, Sections 436,437 and 439 deal with bail to persons/accused who are already arrested or produced or appeared before the court of law under due process of law. In other words, except Section 438 in Chapter XXXIII of the Code of Criminal Procedure, the other three provisions with respect to the bail deal with after arrest or on production or on appearance before a court of law and whereas Section 438 deals with grant of bail prior to arrest or production or appearance. But, Section 438 gives an extraordinary power to the High Court as well as Sessions Court by which a pre-arrest bail can be granted to a person who apprehends of arrest on an accusation of committing non-bailable offence. Going by Section 438 of Cr.P.C., it can be seen that operation of any of the provisions under Section BA NO.3213 OF 2008 :-19-: 438 will be with respect to a person who apprehends arrest with respect to a non-bailable offence. 9. In the decision reported in Ganesh Babu's case (2007(4) SCC 434) cited supra, the Apex Court has held that an application under Section 438 of the Cr.P.C. can be moved only by a person who has not already been arrested and once he is arrested, his remedy is to move the court concerned either under Section 437 or Section 439 of the Cr.P.C. According to the Apex Court, considering the very nature of the direction which the court can issue a direction under Section 438 of the Code, it is clear that a direction will be issued on the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. On examination of the facts and circumstances involved in the present case, especially in the light of the above decisions of the Supreme Court, it can be safely come into a conclusion that no order under Section 438 can be issued in favour of the petitioner solely for the reason BA NO.3213 OF 2008 :-20-: that the petitioner has already been arrested and his remedy is not under Section 438 of the Cr.P.C. 10. Since the petitioner has already been arrested and no order can be granted under Section 438, I think, it is not expedient to go into the merits of other contentions based upon the facts involved in the case