Jishnu. P.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 accused 1 and 2 in Crime No.900/2023 of the Cherupuzha Police Station, Kannur, registered against the accused, for allegedly committing the offences punishable under Secs. 419 and 420 read with Sec.34 of the Indian Penal Code and Sec.66D of the Information Technology Act. The petitioners were arrested on 8.4.2024.

The essence of the prosecution case is that: the accused, in furtherance of their common intention, introduced themselves to the de facto complainant through whatsapp and assured her that if she deposited money in their company she could earn profits by sitting at home. Accordingly, the de facto complainant paid an amount of Rs.11,25,000/- through bank transfer and google pay to the accused. However, the accused failed to pay any profit and refused to return the capital. Thus, the accused have committed the above offences.

Heard; Sri.M.Anuroop, the learned counsel appearing for the petitioners and Sri.C.S Hrithwik, the learned Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have been falsely implicated in the crime. The very fact that the de facto complainant made the deposit on 5.9.2023, but lodged the complaint only on 14.9.2023 proves the falsity in the prosecution. In any given case, the petitioners have been in judicial custody for the last 45 days, the investigation in the case is practically complete and recovery has been effected. Moreover, the petitioners are youth and do not have criminal antecedents.   Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the application. He submitted that the investigation is in progress. He also stated that if the petitioners are enlarged on bail, there is every likelihood of them intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed.

The prosecution allegation against the petitioners is that they induced the de facto complainant to invest money in their company and siphoned off Rs.11,25,000/- by not paying any profit or the capital. The fact remains that the petitioners have been in judicial custody for the last 45 days, the investigation in the case is practically complete and recovery has been effected. Moreover, there is no material to show that the petitioners are persons with 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 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.

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. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society.

On an anxious consideration of the facts, the materials placed on record and the rival submissions made across the Bar, especially considering the fact that the petitioners have been in judicial custody since 8.4.2024, that the investigation in the case is complete and recovery has been effected, I am of the definite view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions.

In the result, the application is allowed, by directing the petitioners to be released on bail on them 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 petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer as and when required;

(ii) The petitioners 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii) The petitioners shall not commit any offence while they are on bail;

(iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits 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 petitioners are 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].