Jerry Easow Oommen vs State Of Kerala

Mohammed Nias C.P., J

These applications are filed under Section 438 of the Code of Criminal Procedure 1973, seeking pre-arrest bail.

In BA No.5719/2023, the petitioner is the second accused in crime No.827/2023 of Pathanamthitta police station. The allegation against the petitioner is that the first accused had sanctioned loans totalling Rs.86,12,19,569.50/- in total violation of all the rules and regulations and has caused loss to the Society. A complaint was preferred by the Joint Registrar of Co-operative Societies.

The learned counsel for the petitioner submits that the allegation of misappropriation is found against the Secretary in the proceedings of the Registrar under section 65 of the Kerala Cooperative Societies Act and rules. The allegation that the loan was granted outside the territorial jurisdiction of the Society is factually wrong. A reading of the enquiry proceedings clearly showed that at the most the charge against the petitioner can only be the mal-administration and not a case of misappropriation, the petitioner's medical condition as evident from the records is such that he cannot abscond as he is regularly undergoing dialysis. It is also argued that the committee is superseded, which virtually prevents the petitioner from having anything to do with the bank. Under such circumstances, it is argued that a custodial interrogation is not required at all and that he is prepared to cooperate with the investigation.

BA 8575/2023 is filed by the first accused, the very same person in BA No.5719/2023 who is arrayed as the first accused in crime No.809/2023 which was filed by a customer complaining that the bank has not returned the fixed deposits made by her.

Learned counsel for the petitioner submits that it is for the bank to answer the said charges and not the President. He also relies on the judgments of the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar and another [(2014) 8 SCC 273], Mohammed Asfak Alam v. State of Jharkhand and another [(2023) 8 SCC 632] and Siddharth v. State of Uttar Pradesh and another [(2022) 1 SCC 676] to contend that an arrest is unnecessary on the facts of the case where everything is to be proved based on documentary evidence. He also submits that there is no chance of the petitioner influencing the witnesses or interfering with the investigation. Under such circumstances, he prayed for the grant of anticipatory bail.

The learned Public Prosecutor opposing the bail applications submits that more than 87 crores of rupees is the alleged misappropriation and that the first accused, the Secretary of the Society and the second accused, the President of the Society, had acted in such a manner to cause the above loss.

The entire actions of the accused were against the by-law and the huge advances made were not only legal but also against the interest of the Society. All these facts can be unearthed only by a proper investigation including a custodial interrogation. It is also the argument of the learned Prosecutor that in economic offences and where the alleged misappropriation is running to crores, courts must be slow to grant anticipatory bail as it will have an effect of hampering the investigation.

Having considered the rival submissions, the report filed by the Prosecutor as well as the report on an enquiry conducted under Section 65 of the Kerala Co-operative Societies Act made available by the learned counsel for the petitioner, it has to be seen that the main allegations were made against the Secretary. Most of the findings, as stated above, are not against the President and the proof of the allegations against the accused is more in the form of documentary evidence. The learned counsel for the petitioner also submits that the petitioner is aged 68 and that he is a kidney patient undergoing dialysis twice a week. Two documents produced by the petitioner in BA8575/2023 showed that he was undergoing treatment in Believers Church Medical College Hospital.

Considering the allegations against the petitioner, the report under Section 65 of the Kerala Co-operative Societies Act and Rules, the fact that the committee is superseded and an Administrator is running the Society, most of the evidence to be adduced is in documentary form, most of the witnesses are official witnesses, the adverse medical condition of the petitioner, I do not think that a custodial interrogation is necessary. Therefore, I am inclined to grant anticipatory bail to the petitioner ensuring the co-operation of the petitioner in the investigation. Accordingly, the bail applications are allowed on the following conditions:-

i. The petitioner shall appear before the Investigating Officer within ten days from today and subject himself to interrogation.

ii. After interrogation in the event the investigating officer decides to arrest the petitioner, he shall be released on bail on executing separate bond for a sum of Rs.50,000/- (Rupees fifty thousand only) in each case with two solvent sureties each for the like sum to the satisfaction of the officer concerned.

iii.The petitioner shall appear before the investigating officer as and when directed.

iv. The petitioner shall fully cooperate with the investigation, including subjecting himself to the deemed police custody for the purpose of recovery, if any, as and when demanded.

v. The petitioner shall not leave India without the permission of the jurisdictional court.

vi.The petitioner shall surrender his passport, if any, within seven days from the date of his release before the Court concerned and if the release of the passport is required at a later period, the petitioner shall be at liberty to move an appropriate application for the same before the court having jurisdiction. If he has no passport, he shall file an affidavit to that effect before the court concerned, on the date of execution of the bond or within three days thereafter.

vii.The petitioner shall not commit any offence while on bail.

viii.The petitioner shall furnish his residential address, including his mobile phone number, to the investigating officer as well as to the court.

ix.If any of the above conditions are violated by the petitioner, the jurisdictional court is empowered to cancel the bail in accordance with law.

It is made clear that it is within the power of police to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner, even when the petitioner is on bail as per the judgment of the Apex Court in Sushila Aggarwal and others v. State (NCT of Delhi) and another [2021 (1) KHC 663].