IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 Bail Appl..No. 6029 of 2008() ----------------------------- CRIME NO.666/06 OF CHALAKKUDY POLICE STATION PETITOINER: -------------------- THOMAS, S/O. DEVASSY, AGED 43, KALLELI HOUSE, EAST CHALAKKUDY VILLAGE, CHALAKKUDY.P.O. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18/11/2008, ALONG WITH BA NO. 6321 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 6029 of 2008 & B.A.No.6321 of 2008 ----------------------------------------- Dated this the 18th November, 2008 O R D E R These petitions are for anticipatory bail. 2. The alleged offences are under Sections 120B, 408, 465, 468, 471, 420 and 477A of the Indian Penal Code. Petitioner in B.A.No.6029 of 2008 is accused no.15 and petitioner in B.A.No.6321 of 2008 is accused no.19 in the same crime. According to prosecution, certain Directors of a Service Co-operative Bank conspired with several persons to commit various offences and in pursuance of the conspiracy, though bank can grant maximum loan upto Rs.1,00,000/-, certain directors granted loans even for amounts upto Rs.75 lakhs to various customers. The bank is expected to grant loan only to persons, who are within the jurisdiction of the bank, but loans were advanced to persons, who are residing outside the jurisdiction. Overdraft facility was also granted against the provisions in the Bye-law. Certain properties which were mortgaged by depositing title deeds were sold, after taking back the documents. 3. Learned Public Prosecutor submitted that the specific allegation against accused no.15 is that as a Director of the Bank, BA.6029 & 6321/08 2 he had sanctioned loan to the tune of Rs.15 lakhs to accused no.23 and his property was mortgaged by depositing title deed for procuring the loan. Later, the title deed was taken from the bank and the property belonging to accused no.23 was assigned in favour of petitioner (accused no.15). As regards, accused no.19 is concerned, she is the wife of accused no.11, who is a Director of the Bank. Rs.60 lakhs were sanctioned as loan to the firm in which accused no.19 is a partner. All these acts were committed in pursuance of a conspiracy hatched among various Directors, customers etc. and the bank sustained huge loss. Petitioners are required for custodial interrogation and this is not a fit case to grant anticipatory bail, it is submitted. 4. Learned counsel for accused no.15 submitted that accused no.15 is absolutely is absolutely innocent of the allegations made. He also submitted that he resigned from the Director Board on 19.1.2007. It is also submitted that he had no reason to know that the property which was assigned in his favour was mortgaged to the bank. He also submitted that though accused no.15 is not liable to pay any amount to the bank, which was advanced as loan to accused no.23, he is prepared to deposit Rs.15 lakhs, since anticipatory bail was granted to other accused by this Court on deposit of the relevant amounts. BA.6029 & 6321/08 3 5. Learned counsel for accused no.15 also placed reliance upon the order dated 7.12.2007 (Annexure-II) in B.A.No.7001/2007 and also dated 12.2.2007 in B.A.No.836 of 2007, as per which several co-accused in this crime were granted anticipatory bail by this court. It was also pointed out that as per those orders the Magistrate Court concerned was directed to release certain accused on bail on appropriate conditions. The investigating officer was also directed to release certain other accused, in the event of arrest on conditions. Having granted anticipatory bail to similarly placed accused, it is submitted that the same benefit may be extended to the petitioners as well. It was also pointed out that accused no.26, had pledged the property and the documents were taken back from the bank and sold the property to accused no.24 but accused no.24 also was granted anticipatory bail by this court as per Annexure-II order. In such circumstances, learned counsel for petitioners submitted that it will result in injustice if anticipatory bail is refused and petitioners are detained. 6. Learned counsel for accused no.19 submitted that though Rs.60 lakhs were sanctioned as loan, Rs.40 lakhs was repaid. The only balance of Rs.20 lakhs has to be paid now. Accused no.19 is absolutely innocent of the allegations made. She is a woman and she cannot be made responsible for the loan granted by the bank BA.6029 & 6321/08 4 and she is prepared to pay the amount due, it is submitted. Since other co-accused are granted anticipatory bail, who are similarly placed, it is submitted that petitioner may also be granted anticipatory bail. 7. This petition is strongly opposed by learned Public Prosecutor and he submitted that on the facts and circumstances of the case, it is not proper to grant anticipatory bail in a case of this nature, wherein huge amounts were misappropriated. Documents were forged and the bank was cheated even by falsification of accounts. The offences were committed in pursuance of a conspiracy by the Directors of the bank with various lonees, which include wife of one of the Directors, who is accused no.19 in this case. 8. It was also pointed out that the earlier bail applications referred to by learned counsel for accused no.15 were opposed by the prosecution on the ground that the accused are required for custodial interrogation etc. In the light of the various offences committed, petitioners herein are also required for custodial interrogation. Granting of anticipatory bail to similarly placed accused cannot be made a ground to grant anticipatory bail under all circumstances. Each transaction is different and the facts which are disclosed by each accused will be different and therefore, BA.6029 & 6321/08 5 petitioners are to be interrogated in custody by the police for an effective investigation. For these reasons, these petitions are opposed by learned Public Prosecutor. 9. On hearing both sides, and on consideration of facts and circumstances of this case, I am not persuaded by any of the facts stated by petitioners to grant anticipatory bail. The remedy under Section 438 Cr.P.C can be invoked only under special circumstances. As submitted by learned Public Prosecutor, granting of anticipatory bail to a similarly placed accused cannot under all circumstances be made a ground to grant anticipatory bail. In the nature of allegations made against petitioners and on consideration of the nature of investigation required, I am of view that it is not fit and proper to grant anticipatory bail, especially since petitioners are required for custodial interrogation. 10. It is made clear that considerations for grant of anticipatory bail are totally different from considerations for grant of bail under Section 437 Cr.P.C. It is also made clear that refusal of anticipatory bail by itself will not be a ground to refuse regular bail. In such circumstances, the following order is passed: BA.6029 & 6321/08 6 i) Petitioners shall surrender before the investigating officer within seven days from today and make themselves available for interrogation and they shall also co-operate with the investigation. ii) Thereafter, in the event of arrest, they shall be produced before the Magistrate Court concerned in accordance with law. iii) On production of petitioners before the Magistrate Court concerned, and if they file applications under Section 437 Cr.P.C, it shall be disposed of in accordance with law on merits, considering the various contentions raised by petitioners. iv) Bail application, if any, filed by petitioners, shall be disposed of by the learned Magistrate, as expeditiously as possible, in accordance with law. Petitions are disposed of accordingly. K.HEMA, JUDGE vgs.