Ahmed Afnan C.M vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.1789/2023 of the Kottayam East Police Station, Kottayam, registered against the accused (two in number), for allegedly committing the offences punishable under Sections 406, 409, 420, 465, 468, 471 of the Indian Penal Code, 1860 and under Sections 66(C) and 66(D) of the Information Technology Act, 2000. The petitioner was arrested on 22.02.2024.

The gist of the prosecution case is that: the accused (two in number) created a fake online business profile named, ‘Olympic Tradepro’ and, thereafter, in furtherance of their common intention made the de-facto complainant believe that, if he invested money in the online trading business through the above profile, he would get 15% bonus every month. Accordingly, an amount of Rs.1,24,19,150/- was transferred from the de-facto complainant’s bank account to the account of the first accused. However, the accused did not provide the bonus or return the principal amount. Thus, the accused have committed the above offences.

Heard; Sri. T. Madhu, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondent.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The offences alleged against the petitioner will not be attracted. In any given case, the petitioner has been in judicial custody since 22.02.2024, which is 47 days, the investigation in the case is practically complete, and recovery has been effected. Therefore, the petitioner’s continued detention is unnecessary. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. He submitted that the petitioner is a person with criminal antecedents. The petitioner is involved in a similar crime in Bangalore. If the petitioner is let off on bail, there is every likelihood of him committing similar offences. The investigation in the case is not complete. If the application is allowed, it would hamper the investigation. Hence, the application may be dismissed.

In Sanjay Chandra v. CBI [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence until a person is found guilty. Any imprisonment prior to conviction is to be considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct.

In Dataram Singh v. State of U.P. [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is a rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner.

Subsequently, in State of Kerala v. Raneef [(2011) 1 SCC 784], the Honourable Supreme Court has again held that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution.

On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on considering the fact that the petitioner has been in judicial custody since 22.02.2024, which is 47 days, that the investigation in the case is practically complete, and recovery has been effected, I am of the view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application.

In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is filed. He shall also appear before the Investigating Officer, as and when directed;

(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii)The petitioner shall not commit any offence while he is on bail;

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State(NCT of Delhi) and Anr. [2020 (1) KHC 663].