Muhammed Shareef 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 3 and 4 in Crime No.185/2024 of the Kadavanthra Police Station, Ernakulam, registered against the accused for allegedly committing the offences under Sections 406 and 420 r/w Sections 34 of the Indian Penal Code and Section 67 of the Information Technology Act. The petitioners were arrested on 03.06.2024.

The crux of the prosecution case, is that; the accused, in prosecution of their common intention, with intention to cheat the defacto complainant, requested him to join a WhatsApp group named ’HNI Nurturing Programme’ and offered him 80% profit in stock trading. Consequently, the first informant transferred Rs. 2,27,000/- to the bank accounts of the accused 1 and 2. Even though, the first informant paid the amount, the accused did not pay the profit or return the capital. Thus, the accused have committed the above offences.

Heard; Sri. Santhosh Kumar, learned counsel appearing for the petitioners and Smt.Seetha.S the learned Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. There is no material to connect the petitioners’ involvement in the crime. It is only on the basis of the allegation that the fifth accused transferred some money to the accounts of the petitioners that they have been implicated in the crime. In any given case, the petitioners have been in judicial custody for the last one month, the investigation in the case is complete, and the recovery has been effected. Furthermore, the petitioners do not have any criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that there are incriminating materials to substantiate the petitioners’ involvement in the crime. In fact, the first accused had transferred money to the bank accounts of the petitioners. If the petitioners are released on bail, there is every likelihood of them tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed.

The prosecution allegation is that the accused, in furtherance of their common intention, induced the first defacto complainant to pay Rs.2,27,000/- on the assurance of giving 80% of the profit. Even though, the first informant paid the amount, the accused did not pay any profit or return the capital. The fact remains that the petitioners have been in judicial custody for the last one month, the investigation in the case is practically complete, and the recovery has been effected. Furthermore, the petitioners do not have any 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 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.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that the petitioners have been in judicial custody for the last one month, that the petitioners do not have any criminal antecedents, that the investigation in the case is practically complete, and that the recovery has been effected, I am of the definite view that the petitioners’ further detention is not necessary. Hence, I am inclined to allow the bail application.

In the result, the application is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each 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 him 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.

(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 petitioners 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].