Dipin Shaji 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.253/2024 of the Ernakulam Town South Police Station, Ernakulam, which is registered against the accused (two in number) for allegedly committing the offences punishable under Sections 406 & 420 read with Section 34 of the Indian Penal

Code, 1860. The petitioner was arrested on 27.05.2024.

The gist of the prosecution case is that: the accused, in furtherance of their common intention, assured the de-facto complainant that they would secure an employment for him in a Singapore based company and received an amount of Rs.4,00,000/-through Bank transfer. However, the accused failed to secure the employment or return the amount to the de-facto complainant. The first accused is the Managing Director of the company, and second accused/ the petitioner, is the HR Manager. Thus, the accused have committed the above offences.

Heard; Sri. S. Rajeev, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner is only a paid employee of the company, named Astra Group of Companies, wherein the first accused is the Managing Director. The petitioner only acted upon the instructions of his employer. Pursuant to the notice issued by the Investigating Officer, the petitioner appeared before the Investigating Officer; but he was arrested. The petitioner has been in judicial custody for the last 16 days, the investigation in the case, so far as the petitioner is concerned, is practically complete, and the recovery has been effected. Moreover, the petitioner does not have criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She contended that the investigation in the case is still in progress. She also submitted that, if the petitioner is let off on bail, it would certainly hamper the investigation. Moreover, it was the petitioner who interacted with the public and induced the de-facto complainant to pay the money to the company. Nonetheless, she did not dispute the fact that the petitioner was only a paid employee of the company, the entire money was paid directly to the company, and that the petitioner does not have criminal antecedents.

On an analysis of the allegation against the accused, it is seen that the de-facto complainant allegedly paid an amount of Rs.4,00,000/- to Astra Group of Companies, wherein the first accused is the Managing Director and the petitioner is the HR Manager. The de-facto complainant has alleged that although the accused had assured him an employment in Singapore, they failed to secure the employment and refused to return the amount to him. Indisputably, the amount was directly credited to the account of the company. The petitioner is only a paid employee of the company, and he is not in charge of the administration or management of the day-to-day affairs of the company. The petitioner is also a person without criminal antecedents.

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.

The principle that bail is the rule and jail is an exception, is 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, especially considering the fact that the petitioner has been in judicial custody for the last 16 days, the investigation in the case, so far as the petitioner is concerned, is practically complete and that the petitioner is only a paid employee of the company to whom the de-facto complainant had paid the money, and the petitioner does not have any criminal antecedents, I am of the definite 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.50,000/- (Rupees fifty thousand 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 laid. 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].