The petitioner is accused No.1 in Crime No.548 of 2014 of Vadakara Police Station, Kozhikode district for offences registered under Section 420 of Indian Penal Code. As he is apprehending arrest in the above crime he has filed this application for anticipatory bail under Section 438 of the Code of Criminal Procedure. 2. The gist of the prosecution allegation is that the lady de facto complainant herein was working as a medical nurse at the ministry of Health in Saudi Arabia and that the 1st accused, who was conducting a travel agency by name Malabar Tours & Travels, had approached the de facto complainant and offered her a job under the Dubai Health Authority. Towards the preliminary expenses, petitioner had asked her to transfer an amount of `50,000/- to his bank account. Thereafter the petitioner had introduced the 2nd accused to the de facto complainant and both of them compelled her to resign the job in Saudi Arabia after making her to believe that she can join for the job under the Dubai Health Authority immediately. Therefore, the de facto complainant resigned her job and came to India on 30.05.2013 and that the petitioner contacted her over telephone and directed her to transfer an amount of `2 lakhs to his account. That on 13.08.2013, she had remitted an amount of `1,50,000/- in the account of the petitioner and she was given an air ticket to participate in the examination at Dubai and that she participated in the examination in Dubai and came back and thereafter, again they contacted her over telephone and instructed her to deposit an amount of `2 lakhs in the bank account of the 2nd accused and when she was reluctant, her husband was also offered a job visa and she had deposited an amount of `1,50,000/- in the account of 2nd accused. That on 07.08.2013, she had deposited an amount of `50,000/- in the bank account of the 2nd and thereafter in the month of September 2013 an amount of `75,000/- was deposited in the account of the petitioner as demanded by him. Later, a further sum of `2,75,000/- was deposited by the de facto complainant in the account of the 2nd accused. Though the accused accepted the amounts aforesaid, they did not give the de facto complainant the job visa and hence, she had preferred the complaint which led to the registration of the instant crime.
3. Sri.Sunny Mathew, learned counsel for the petitioner, would submit that the petitioner is innocent of the allegations levelled against him and that he had fallen prey of the evil deeds of the 2nd accused and that immediately on receipt of the aforementioned amount of `2,75,000/- from the de facto complainant, the petitioner herein had transferred the entire amount to the bank account of 2nd accused as exhibited by Annexure A1 and that the petitioner was the victim of the cheating by the 2nd accused and thereafter he had submitted various representations to the officials concerned as evidenced by Annexure A2, A3, A4 and A5. Ultimately this led to the registration of Crime No.643 of 2014 of Irinjalakkuda Police Station, in which the 2nd accused herein, his brother and mother are arrayed as accused. That his plea for anticipatory bail has been earlier refused by this Court as per Annexure A6 order dated 18.08.2014 in B.A No.5375 of 2014. Final report has been filed in Crime No.643 of 2014 of Irinjalakkuda Police Station, which was triggered at the instance of the de facto complainant herein and other accused persons. The petitioner would place reliance on the decision of the Apex court in the case Arnesh Kumar V State of Bihar reported in 2014(3) KLT 143(SC), and it was submitted that the legal principles laid down therein are applicable in this case as the offence in the instant crime is the same and one under Section 420 of Indian Penal Code. The learned counsel for the petitioner would further submit that he has been running the business in question for quite some time and that apart from the instant crime there has not been a single crime registered against the petitioner alleging any such similar or such transactions.
4. It is prayed by the petitioner that custodial interrogation of the petitioner is not required and that he would fully co-operate with the conduct of the investigation in this crime and he is prepared to comply with any condition imposed by this Court that is found necessary to protect the bonafide interest of the prosecution.
5. The learned Public Prosecutor on instructions submitted that the investigation in the instant crime, Crime No.548 of 2014 of Vadakara Police Station, Kozhikkode, has already been completed and the final report has been filed before the competent court on 29.08.2014, with the remark that the 2nd accused herein is absconding.
6. The submission of the final report signifies that the investigation in this case is over. As the investigation is complete, this Court is of the opinion that there is no necessity of any custodial interrogation of the petitioner in this case. Therefore, having regard to the totality of the facts and circumstances of this case and taking into account the fact that the investigation has been completed on 29.08.2014, and that there is substantial change of circumstance after this Court has rendered Annexure A6 order on 18.08.2014, this Court can still1 exercise the jurisdiction under Section 438 of the Code of Criminal Procedure even after filing of report, in view of the ratio-decidendi laid down by the Apex Court in the case Bharat Chaudhary V State of Bihar reported in ((2003) 8 SCC 77)
Paragraph No.7 of the above decision reads as follows:
“7.From the perusal of this part of Section 438 of CrPC, we find no restriction in regard to exercise of this power in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e. the Court of Session, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of CrPC even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so.
It is also submitted by the learned Public Prosecutor that as the investigation has been completed as against the petitioner, there is no necessity for the arrest of the petitioner. In view of this aspect, the apprehension of the petitioner that he will be arrested and therefore, his prayer for pre-arrest bail is maintainable, appears to be misplaced, insofar as the submission of the final report is a subsequent development after the rendering of Annexure A6 order on 18.08.2014.
Accordingly, it is ordered that the petitioner can move appropriate bail application before the learned Magistrate concerned and the learned Magistrate concerned shall consider the same forthwith on the same day and grant bail to the petitioner on his executing a bond for `35,000/- (Rupees Thirty Five Thousand only) and on his furnishing two solvent sureties for the like sum to the satisfaction of the Magistrate concerned subject to any other conditions that may be found necessary and just by the Magistrate concerned.
Subject to the above observations and directions, this application is disposed.
Sd/-
ALEXANDER THOMAS, JUDGE.
Vdv //True Copy// P.A to Judge