Ker HC | S. 438 CrPC: Anticipatory bail cannot be allowed in cases where the custodial investigation is necessary

Kerala High Court: B. Sudheendra Kumar, J. dismissed the anticipatory bail application of a person who was charged with offences of breach of trust, cheating and dishonestly inducing delivery of property and criminal conspiracy under the Penal Code, 1860 and also for computer-related offences under the Information Technology Act, 2000.

The petitioner herein was accused 4 according to the registered crime. There were 5 accused out of which the 1^st to 3^rd accused were candidates for the post of Civil Police officer and the petitioner along with accused 5 was charged for supplying them with answers in the written examination conducted by the Kerala Public Service Commission with their respective mobile numbers. A preliminary enquiry was conducted and thereafter the crime was registered.

Counsel for the petitioner Latheesh Sebastian contended that the prosecution could not find any evidence as to how the petitioner got the question papers and answers and hence, pleaded his innocence. He also contended that the custodial investigation of the petitioner unnecessary and thus filed an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.

V. Sreeja, the learned public prosecutor opposed the application and contended that they could find the messages that were sent from the petitioner’s mobile to the accused’s 1 and 3. However, they could not find as to who supplied the question papers and the custodial investigation of the petitioner was necessary in order to find this.

High Court after observing the materials opined that the answers were supplied to the accused’s 1 and 3 from the mobile phones of the petitioner. Accused 5 who supplied the question papers were known only to the petitioner and custodial investigation was necessary to find this information. Thus, the Court further dismissed the application for anticipatory bail and directed the petitioner to surrender himself before the investigation officer for subsequent investigation.[Safeer. D v. State of Kerala, 2019 SCC OnLine Ker 2796, decided on 30-08-2019]