Aswin vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 2nd accused in Crime No.5/2024 of the Cyber Crime Police Station, Kollam, registered against the accused, for allegedly committing the offences punishable under Sections 419 and 420 r/w. Section 34 of the Indian Penal Code (in short, 'IPC') and Section 66D of the Information Technology Act. The petitioner was arrested on 13.03.2024.

The gravamen of the prosecution case is that: the accused, in furtherance of their common intention to make unlawful gain, induced the defacto complainant to invest Rs.42,50,276/-. The said amount was withdrawn through the bank accounts of the accused. The accused failed to give any profit to the defacto complainant or return his money. Thus, the accused have committed the above offences.

Heard; Sri.P.S.Binu, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. A reading of the First Information Report and the FIS would establish that none of the above offences would stand attracted against the petitioner. The petitioner is a law abiding citizen and does not have any criminal antecedents. In any given case, the petitioner has been in judicial custody for the last 40 days, the investigation in the case is complete and recovery has been effected. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She further stated that the petitioner along with the other accused have committed a grave economic offence. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed.

The prosecution allegation against the petitioner is that he along with the other accused had induced the defacto complainant to invest Rs.42,50,276/- by promising good profit. However, the accused failed to pay the profit or return the capital. The fact remains that the petitioner has been in judicial custody since 13.03.2024, the investigation in the case is practically complete and recovery has been effected.

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 the 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.

In State of Kerala v. Raneef, [(2011) 1 SCC 784], the Honourable Supreme Court has declared 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.

In Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India.

The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. The right to bail cannot be denied merely due to the sentiments of the society.

On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on considering the fact that the petitioner has been in judicial custody for the last 40 days, the investigation in the case is practically complete, the recovery has been effected and the petitioner does not have criminal antecedents, I am of the definite view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the 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 required;

(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 another [2020 (1) KHC 663].