ORDER : 7th accused in Chalakkudy Police Station Crime No.1229 of 2017 registered under Sections 364, 384, 302 and 120B read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) seeks pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Code”). 2. Heard Sri. B. Raman Pillai and Sri. P. Vijaya Bhanu, the learned Senior Counsel appearing for the petitioner, Sri. Suman Chakrawarthy, learned Senior Public Prosecutor appearing for the State and Sri. S. Sreekumar, learned Senior Counsel appearing for the defacto complainant/intervenor. 3. I have carefully perused the materials on record and the case diary submitted by the prosecution. 4. On 29.09.2017 at about 11.00 hours in the morning, the defacto complainant (son of deceased Rajeev) appeared before the Sub Inspector of Police, Chalakkudy Police Station and gave a statement that his father went missing and he was not heard of between 8.00 p.m. on 28.09.2017 and 7.45 a.m. on 29.09.2017. It is also mentioned in the first information statement that Rajeev had taken three nutmeg plantations on lease. Deceased used to reside in a house situated in the nutmeg garden taken on lease from Kallingal Thomas. The property is situate at a place called Thavalappara. Deceased contacted his son last on 28.09.2017 night. Thereafter, on the next day morning, the defacto complainant received information from a known autorickshaw driver that latter had seen his father's scooter capsized inside the plantation, by the side of its gate. The defacto complainant went there and found an upturned scooter and also chapels lying scattered, indicating use of force against his father. As he did not find his father, he went to police station and informed. It is specifically stated in the first information statement that the 5th accused Johny and the deceased were engaged in real estate business a couple of years before the incident and later they fell apart. It is the allegation that the 5th accused Johny was bitterly enmical towards his father. Petitioner (7th accused) was also hostile to his father on account of some financial transactions. Deceased had filed petitions before higher police officers and writ petitions before this Court against the 7th accused. It is the allegation that the 5th accused Johny was bitterly enmical towards his father. Petitioner (7th accused) was also hostile to his father on account of some financial transactions. Deceased had filed petitions before higher police officers and writ petitions before this Court against the 7th accused. In the light of these allegations, police registered a case initially under Section 57 of the Kerala Police Act, 2011 and later, on finding that the defacto complainant's father Rajeev was murdered, police altered the Sections as shown above. 5. In the bail application, the petitioner has contended that he has no connection with the crime. He has been falsely implicated to wreak vengeance nurtured by certain persons. Petitioner is totally innocent of all accusations. He is a lawyer having a standing of 32 years in the Bar and has an impeccable reputation of being an upright lawyer. On account of the professional excellence and integrity, he has been appointed as Special Prosecutor by the State and Central Governments. As a natural consequence, he has several adversaries and at the instance of some deviant elements now he is implicated in the crime. 6. Petitioner admitted that the deceased was a client of his. At that time, the petitioner was in search of a mango orchard in and around Palakkad. Deceased offered to arrange a property for the petitioner as he was in the real estate business. In the meantime, the deceased had obtained Rs.11.5 lakhs from the petitioner as loan. Later, the petitioner came to know that he was cheated and resultantly he submitted a complaint against the deceased before the Superintendent of Police, Aluva on 19.05.2017. On that complaint, the Superintendent of Police directed the Station House Officer, Nedumbassery Police Station to conduct an enquiry. Anticipating arrest, the deceased and his son (defacto complainant) submitted B.A.No.3795 of 2017 before this Court, which was dismissed as there was no basis for their apprehension. It is the contention of the petitioner that to scuttle an enquiry, the deceased and his son (defacto complainant) filed W.P.(C) No.17826 of 2017 before this Court complaining police harassment. Thereafter, he filed another petition as W.P.(C) No.19370 of 2017 seeking police protection falsely alleging that he was being threatened by the petitioner. All these facts will go to show that during the life time of Rajeev and after his death, persons hostile to the petitioner are persecuting him. Thereafter, he filed another petition as W.P.(C) No.19370 of 2017 seeking police protection falsely alleging that he was being threatened by the petitioner. All these facts will go to show that during the life time of Rajeev and after his death, persons hostile to the petitioner are persecuting him. 7. Opposing the averments in the bail application, the defacto complainant filed Crl.M.A. No.11177 of 2017 to get himself impleaded. Learned Single Judge allowed the petition. In the impleading petition, the defacto complainant reiterated the contention that his father was doing real estate business with 5th accused Johny and later they were estranged. Thereupon, 5th accused caused threat to life of the deceased and family members. It is further alleged that 5th accused even attempted to kidnap the defacto complainant. Since complaints filed before various police officers evoked no response, deceased Rajeev approached the petitioner (7th accused) seeking professional help to file a writ petition for police protection against the 5th accused. Annexure-A is the judgment in W.P.(C) No.16274 of 2016 filed by deceased Rajeev through the 7th accused. In the cause title itself, name of the 7th accused can be seen as the counsel engaged by the deceased. 8. Thereafter, deceased Rajeev and family members were falsely implicated in Crime No.973 of 2016 of Angamaly Police Station. Then, again the defacto complainant and his father approached the 7th accused for filing anticipatory bail application and also to quash the first information report. Annexure-B is the order passed by the learned Sessions Judge, Ernakulam in Crl.M.C.No.1078 of 2016 granting anticipatory bail. In this case also the 7th accused was appearing for the defacto complainant and his father. 9. After 7th accused got close acquaintance with the deceased, he evinced interest for investing in real estate business. Deceased promised to extend help to the 7th accused. According to the intervenor, the relationship between the deceased and the 7th accused was not merely that of an advocate and client, but thick intimacy developed between them. Through the intervention of the deceased, the 7th accused executed three agreements to purchase immovable property and those transactions are revealed from Annexures-C to E. 10. Since the 7th accused failed to comply with the terms and conditions in the agreements for sale for want of money, he coerced and intimidated deceased Rajeev to pay the balance consideration. Through the intervention of the deceased, the 7th accused executed three agreements to purchase immovable property and those transactions are revealed from Annexures-C to E. 10. Since the 7th accused failed to comply with the terms and conditions in the agreements for sale for want of money, he coerced and intimidated deceased Rajeev to pay the balance consideration. As the deceased had no funds to help the 7th accused, he politely turned down the demand. This provoked the petitioner and thereafter he started haunting the deceased. Meanwhile, the petitioner got in touch with the 5th accused, who had already turned an enemy of the deceased. In 3rd week of May, 2017, petitioner lodged a complaint before the Inspector General of Police, Ernakulam Range, which was forwarded to the Circle Inspector of Police, Nedumbassery. It is alleged in the complaint that the deceased had cheated the petitioner to a tune of Rs.58 lakhs entrusted by him towards the balance sale consideration. By this time, the petitioner was appointed Special Prosecutor in a sensational murder case and acquired close relationship with top police officers. Police started coercing the deceased to settle matters with the petitioner. As the petitioner was having close liaison with police officers in the District, the deceased filed W.P.(C) No.17826 of 2017 before this Court complaining police harassment at the instance of the petitioner. Annexure-F is the interim order passed in the writ petition. 11. Defacto complainant and his father, on apprehending arrest, approached this Court with B.A.No.3795 of 2017 alleging that they are being targeted on the complaint filed by the petitioner. Annexure-G is the order passed by this Court in the bail application. It is further alleged by the defacto complainant/intervenor that the petitioner engaged his henchmen, some of them are hardcore criminals, to file false complaints against the deceased. Those complaints are intended to intimidate and coerce the deceased to part with money. On account of the petitioner's clout with top police officers as he was a Special Prosecutor and close to the bureaucratic set up, the defacto complainant and his father had no other option, but to approach this Court seeking police protection. Annexure-J is the judgment passed by this Court in W.P.(C) Nos.17826 of 2017 and 19370 of 2017. It is reiterated that the defacto complainant and his father were facing threat to their life from the petitioner and his accomplices. Annexure-J is the judgment passed by this Court in W.P.(C) Nos.17826 of 2017 and 19370 of 2017. It is reiterated that the defacto complainant and his father were facing threat to their life from the petitioner and his accomplices. The defacto complainant has therefore requested not to grant anticipatory bail to the petitioner. 12. Sri. B. Raman Pillai, learned Senior Counsel contended that due to personal ill-will nurtured by the defacto complainant and family members, the petitioner has been falsely implicated in the case. Learned Senior Counsel strongly contended that the stand taken by the defacto complainant in the impleading petition and the materials in the remand reports submitted by the prosecution before the court below are contradictory to one another and the incongruity itself can be taken as a circumstance to doubt veracity of the prosecution case. In this context, it is to be remembered that a remand report is only a report submitted by the investigating officer to justify the claim for keeping the accused in custody and the contents therein may vary as and when the investigation is progressing. 13. Allegations borne out from the materials in the case diary would show that the accused 1 to 4 kidnapped deceased Rajeev on 29.09.2017 after 7.00 a.m.. After overpowering the deceased, his hands and legs were tied and he was forcefully taken in an autorickshaw to a dilapidated building, which was taken on lease recently at the instance of the 5th accused, situated in an unfrequented garden land. Thereafter, deceased Rajeev was coerced, intimidated and assaulted demanding to sign on blank stamp papers and white papers. According to the prosecution, those signed papers were intended to be used for creating documents at the instance of the 5th accused and the petitioner. Every time when the deceased refused to sign, he was physically assaulted. Finally, the accused 1 to 4 smothered the deceased with a plastic mat and he was strangulated by using a bath towel, which resulted in his death. 14. Learned Senior Counsel appearing for the petitioner contended that even according to the prosecution neither the petitioner nor accused 5 or 6 was present at the place of occurrence. Even if the accused 5 and 6 had animosity towards the deceased, there is no valid reason for implicating the petitioner in the case. 14. Learned Senior Counsel appearing for the petitioner contended that even according to the prosecution neither the petitioner nor accused 5 or 6 was present at the place of occurrence. Even if the accused 5 and 6 had animosity towards the deceased, there is no valid reason for implicating the petitioner in the case. Refuting these contentions, learned Senior Counsel appearing for the defacto complainant submitted that the petitioner is the kingpin in the conspiracy and at his instance the abandoned building was taken on lease through the 5th accused and the operation was perpetrated in that secret place. Learned Prosecutor also submitted that active role of the petitioner in hatching a ploy to exterminate Rajeev is revealed from the investigation so far made. 15. Materials in the case diary, especially the call records relied on by the prosecution, will clearly show that the 5th accused was frequently contacting the petitioner on 29.09.2017. Prosecution would contend that the accused 1 and 5 had made various calls on mobile phones before and after murdering Rajeev. It is the prosecution case that the 1st accused contacted the 5th accused at 8.33 a.m. on the date of occurrence and immediately thereafter at 8.37 a.m. the 5th accused contacted the 7th accused (petitioner). Between 8.33 a.m. and 12.46 noon, there are 20 calls between accused 1 and 5. Further, between 8.37 a.m. and 23.15 p.m., there are 28 calls between the 5th accused and the petitioner. It is the prosecution case that the petitioner and 6th accused, who is said to be driver of the 5th accused, were also contacting one another over mobile phone at least six times on that date. Learned Prosecutor contended that operation of kidnapping and subsequent torture on Rajeev, which led to his death, was done as per the wish and under the instructions of the petitioner will be clear from the incessant contacts between the petitioner on one hand and accused 5 and 6 on the other hand. It is the definite case of the prosecution that accused 5 and 6 arranged the assassins for kidnapping and murdering Rajeev. 16. Learned Senior Counsel appearing for the petitioner contended that the petitioner, being a seasoned criminal lawyer having 32 years experience, will not do a foolhardy act of contacting the criminals over his private mobile phone during the commission of the crime and immediately thereafter. 16. Learned Senior Counsel appearing for the petitioner contended that the petitioner, being a seasoned criminal lawyer having 32 years experience, will not do a foolhardy act of contacting the criminals over his private mobile phone during the commission of the crime and immediately thereafter. It is contended by the learned Senior Counsel that no advocate practicing on the criminal side be faulted for receiving calls from clients, who might have been involved in serious crimes. According to the learned Senior Counsel, at 10.30 a.m. on that day when the petitioner received a call from the 5th accused, informing him about the incident, he immediately contacted the Deputy Superintendent of Police, Chalakkudy and passed on the information. Had he been any way connected with the commission of the offence, he would not have informed the police. That shows his uprightness and bonafides, contended the learned Senior Counsel. 17. Learned Prosecutor and the learned Senior Counsel appearing for the defacto complainant opposed these arguments contending that intermittent calls between accused 5, 6 and the petitioner would show that they were passing on information to one another during the operation and after accomplishing their nefarious plan. Prosecution has a further case that accused 5, 6 and the petitioner could be plotted under the same mobile phone tower location in Alappuzha during the noon hours on the date of occurrence. It is therefore strongly contended that custodial interrogation of the petitioner is highly essential for advancement of the investigation. 18. Learned Senior Counsel would contend that as an experienced advocate, the petitioner has earned State wide reputation. Admittedly, the petitioner has been appointed Special Prosecutor in some serious and sensational criminal cases. He has been functioning as Special Prosecutor for Narcotic Control Bureau and Directorate of Revenue Intelligence. It is therefore contended on behalf of the petitioner that such a person having excellent professional track record and impeccable reputation will not get involved in such an offence. Moreover, if at all a person having such a status gets involved in an offence, sense will prevail upon him for not using his mobile phone to contact persons connected with the crime. Those factual aspects are to be unraveled in an investigation. 19. Learned Prosecutor contended that the call records would reveal that the accused persons were getting instructions from the 5th accused after kidnapping the deceased and while he was being tortured. Those factual aspects are to be unraveled in an investigation. 19. Learned Prosecutor contended that the call records would reveal that the accused persons were getting instructions from the 5th accused after kidnapping the deceased and while he was being tortured. 5th accused in turn contacted the petitioner. Prosecution would further contend that the 5th accused and the petitioner were supposed to reach at the place, where the deceased was illegally detained after kidnapping, and they were intending to force him to sign on documents to be prepared on ante-dated stamp papers, at the instance of the petitioner, in order to stake monetary claims against him. In the meantime, Rajeev succumbed to the inhuman torture meted out by accused 1 to 4. That is why the 5th accused and the petitioner frantically contacted one another and stayed away from the scene. 20. All these submissions are strongly refuted by the learned Senior Counsel by contending that these figments of imagination of the prosecution are completely fallacious. 21. After hearing the learned Senior Counsel on both sides and on going through the case diary, I find that the petitioner, with the involvement of deceased Rajeev, had entered into agreements for purchasing large extent of property as revealed from Annexures C to E. Fact that the petitioner was appearing as advocate for the deceased is also borne out from the records produced before this Court. Prosecution would contend that later the deceased and the petitioner fell apart and thereafter, he started pestering and harassing the deceased demanding money. The deceased took a definite stand that he never owed any money to the petitioner. The materials in the writ petitions and the complaints before police authorities would show that the 5th accused was having bitter enmity towards the deceased and they were entangled in legal battles before this Court and lower courts. At that time, the petitioner was rendering legal help to the deceased. Prosecution case is that when the relationship between the petitioner and deceased became bitter, former joined hands with the 5th accused in order to settle score with the deceased. At that time, the petitioner was rendering legal help to the deceased. Prosecution case is that when the relationship between the petitioner and deceased became bitter, former joined hands with the 5th accused in order to settle score with the deceased. Although it is contended that 5th accused is a client of the petitioner and for seeking legal advice, he might have contacted the petitioner many number of times during the date of occurrence, as of now no material is brought before the court to show that 5th accused approached the petitioner for any legal advice at any point of time. Instead, the records would show that the petitioner was conducting cases for the deceased and that too against the 5th accused. 22. From the materials placed before this Court and the materials in the case diary, I am of the view that role of the petitioner in the crime requires a deeper probe. Jurisdiction vested in this Court under Section 438 of the Code is an extraordinary jurisdiction. It has been pronounced unequivocally in many decisions that the exceptional power vested in this Court under Section 438 of the Code should be exercised in exceptional cases. A pre-arrest bail shall not be granted as a matter of rule and it should be granted only when a special case is made out. Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra ( AIR 2011 SC 312 ) has enumerated the following parameters that should be taken into consideration by courts while dealing with anticipatory bail plea. “(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of sections 34 and 149 of the Penal Code, 1860, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 23. I do not intend to multiply this bail order with precedents since the principles governing grant of anticipatory bail are well established by binding precedents. 24. On an evaluation of the entire facts and circumstances, I find that this is a case where custodial interrogation is highly essential. The link between the petitioner and accused 5 and 6 have to be established. Details regarding phone conversations between them will have to be unearthed. Although, pursuant to an order of this Court passed on 16.10.2017, a search had been conducted in the house and office of the petitioner and some documents have been recovered, the prosecution may require to put questions to the petitioner with reference to the allegation that himself and 5th accused were coercing the deceased for signing some ante-dated documents. Inconsistency pointed out by the learned Senior Counsel for the petitioner is that at one stage the prosecution contended that the deceased was forced to sign on blank stamp papers and at another stage, they contended that the petitioner and 5th accused wanted the deceased to sign documents to be prepared and brought by the petitioner. Prosecution has a definite allegation that after getting signatures from the deceased, the accused persons hatched a conspiracy to do away with him. Prosecution has a definite allegation that after getting signatures from the deceased, the accused persons hatched a conspiracy to do away with him. In regard to this contention, the learned Senior Counsel for the petitioner challenges the prosecution case by posing a question as to why the accused should plan to kill Rajeev to their own detriment after causing him to sign documents? To this query, the learned Senior Counsel for the defacto complainant and the learned Public Prosecutor contended that they wanted to eliminate Rajeev because had he been left alive, he was sure to question those documents. All these matters are facts to be established in a thorough probe. 25. Having regard to the facts and circumstances, I find that the petitioner is not entitled to get a pre-arrest bail order in this case as his presence in custody for questioning is highly essential. “Be you ever so high, the law is always above you” is an unquestionable proposition. 26. I emphasise that the investigating officer or any police officer taking an accused into custody has no right to subject the arrestee to any third degree method. Physical or verbal abuse of the arrestee had been deprecated by this Court and the apex Court in many decisions. However, that should not stand in the way of an investigating officer reaching at the bottom of facts. As stated above, I find that this is a fit case wherein custodial interrogation is necessary. 27. It is argued by the learned Public Prosecutor and the learned Senior Counsel appearing for the defacto complainant that an order passed by this Court on 03.10.2017 caused serious prejudice to the prosecution side whereby the investigation against the petitioner was impeded. This Court directed the investigating officer to place the relevant details and the case diary before proceeding further against the petitioner. It is the prosecution case that this order is ostensibly an order restraining the investigating officer from arresting the petitioner. However, later it was clarified by the learned Single Judge as per order dated 16.10.2017, but not to the satisfaction of the prosecution. Only thereafter a raid could be conducted in the residential building and office of the petitioner. 28. It is my considered opinion that High Court or Sessions Court, while exercising discretionary jurisdiction under Section 438 of the Code, shall not pass orders hampering investigation or preventing arrest of an accused. Only thereafter a raid could be conducted in the residential building and office of the petitioner. 28. It is my considered opinion that High Court or Sessions Court, while exercising discretionary jurisdiction under Section 438 of the Code, shall not pass orders hampering investigation or preventing arrest of an accused. I shall extract Section 438(1) of the Code for clarity: “438. Direction for grant of bail to person apprehending arrest.- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail; Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. xxxxxxxxx” On a reading of Section 438(1) of the Code, it can be seen that the court has power either to reject the application forthwith or to issue an interim order granting anticipatory bail, subject to other conditions in the Section. Proviso to that Sub-section shows that if an interim order under Section 438(1) of the Code has not been passed or if the court has rejected the plea for anticipatory bail, then it shall be open to the officer-in-charge of the police station to arrest an accused without a warrant. Proviso to that Sub-section shows that if an interim order under Section 438(1) of the Code has not been passed or if the court has rejected the plea for anticipatory bail, then it shall be open to the officer-in-charge of the police station to arrest an accused without a warrant. A police officer, who comes to know that an accused involved in a non-bailable offence has filed an anticipatory bail application before a competent court, has a duty before arresting him to ascertain whether any interim order has been passed in favour of the accused. In the light of the principles in Section 438 of the Code, a court considering an anticipatory bail plea should take care to see that no orders are passed standing in the way of a proper investigation. Blanket orders passed by the courts handling applications for anticipatory bail preventing arrest have been deprecated. It can be seen that such orders are not in consonance with the scheme of the provisions in Section 438 of the Code. 29. Reckoning the fact that specific allegation against the petitioner was made at the time of lodging the first information statement itself and that so far no effective investigation has been conducted against the petitioner, I do not deem it fit to give further time to the petitioner for surrendering before the court/investigating officer. 30. Therefore, having found that the petitioner is not entitled to get anticipatory bail, I hereby vacate all the interim orders passed in this case. In the result, the bail application is dismissed.