Shinoy KS vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.509/2024 of the Ernakulam South Police Station, Ernakulam, registered against the accused ( two in number) for allegedly committing the offences under Sections 406 and 420 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 28.04.2024.

The crux of the prosecution case is that; the accused, in furtherance of their common intention to cheat the defacto complainant, had assured him that they would facilitate the flight tickets to London. Consequently, the defacto complainant entrusted the money to book flight tickets. However, the accused did not book the return tickets as promised. Thus, the accused has committed the above offences.

Heard; Sri. V.Visal Ajayan, the learned counsel appearing for the petitioner and Smt. Shynimol. V.O. the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner has been in judicial custody for the last 25 days. In fact, by the common order in B.A.No.3160/2024 and connected cases dated 19.04.2024, this Court has granted the petitioner an order of pre-arrest bail. The petitioner is entitled to the benefit of a similar order. The investigation in the case is practically complete, and recovery has been effected. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. She submitted that the petitioner is a history sheeter. The petitioner is involved in five other crimes of similar nature.The investigation is in progress. If the petitioner is released on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed.

The prosecution allegation against the petitioner and the second accused is that they deceived the defacto complainant by assuring him to get flight tickets to and for to London. However, the accused failed to book the return tickets. The fact remains that the petitioner has been in judicial custody for the last 25 days, the investigation in the case is complete, and the recovery has been effected. Moreover, by the common order in B.A.No.3160/2024 and connected cases, this Court has already granted the petitioner an order of pre-arrest bail.

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. 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 rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioner has been in judicial custody for the last 25 days, that the investigation in the case is practically complete, and that the recovery has been effected, I am of the definite view that the petitioner’s further detention is not necessary. 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 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) The petitioner shall not leave the jurisdictional limits of the Court of Session, Ernakulam, without 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].