Muflik 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.14/2024 of the Cyber Crime Police Station, Thrissur, registered against the accused (two in number), for allegedly committing the offences punishable under Section 420 r/w Section 34 of the Indian Penal Code and Sec.66D of the Information Technology Act. The petitioner was arrested on 9.4.2024.

The crux of the prosecution case is that; the accused, in furtherance of their common intention, got acquainted with the de facto complainant through face book and introduced himself as a lady who was working in the HDFC Bank, Hyderabad. The, the accused induced the de facto complainant to deposit money in the bank so as to enable the accused to achieve the target in the bank. Believing the words of the accused, the de facto complainant transferred an amount of Rs.3,15,000/-between the period from 1.11.2023 to 1.1.2024. However, the accused siphoned off the money of the de facto complainant. Thus, the accused have committed the above offences.

Heard; Sri.B.N Haskar, learned counsel appearing for the petitioner and Sri.C.S Hrithwik, the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the above offences. In any given case, the petitioner has been in judicial custody for the last 50 days, the investigation in the case is practically complete and recovery has been effected. Moreover, the petitioner does not have any criminal antecedents. Therefore, the petitioner’s further detention is unnecessary. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. He submitted that the petitioner is presently employed in Cambodia. If the petitioner is released on bail, there is every likelihood of him fleeing from justice. Also, the investigation in the case is at its preliminary stage. Hence, the application may be dismissed.

The prosecution allegation against the accused is that they induced the de facto complainant and made him transfer Rs.3,15,000/- to their bank account on the assurance that they would repay the money. However, the accused did not return the money. The fact remains that the petitioner has been in judicial custody for the last 50 days, the investigation in the case is practically complete, the petitioner does not have any criminal antecedents 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 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.

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.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials  placed on record, particularly taking  into consideration  the fact that  the petitioner has  been  in judicial custody for the last 50 days, that the investigation in the case is practically complete, that the petitioner does not have any criminal antecedents and recovery has been effected, I am of the definite view that the petitioner’s 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 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 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 them 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) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Thrissur, without the previous permission of the jurisdictional Court.

(vi) 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.

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

(viii) 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].