Sivadasan 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 9 to 11 in Crime No.509/2023 of the Cyber Crime Police Station, Thiruvananthapuram, registered against the accused (11 in number) for allegedly committing the offences punishable under Sections 419 and 420 r/w Section 34 of the Indian Penal Code and Section 66D of the Information Technology Act. The petitioner was arrested on 02.04.2024.

The essence of the prosecution case is that; the accused 1 to 9, in furtherance of their common intention to deceive the defacto complainant and to secure unlawful gain, fraudulently offered a part-time job to the defacto complainant and made him believe that if he invested in a crypto currency wallet, he would get remuneration. Accordingly, he transferred an amount of Rs.90,36,284/- to various bank account on different dates between 20.11.2023 to 24.11.2023. However, the accused did not give any remuneration to the defacto complainant and refused to return the capital. Thus, the accused have committed the above offences.

Heard; Sri.K. Rakesh, the learned counsel appearing for the petitioners and Smt. Seetha. S., the learned Senior 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. A reading of the First Information Report would substantiate that the above offences will not be attracted to the facts of the case. Notwithstanding the above contentions, the Court of Session has already enlarged the fifth accused on bail as per the order dated 27.04.2024, in Crl.M.C.No.893/2024. The petitioners are entitled to the benefit of a similar order. In any given case, the investigation is practically complete, and recovery has been effected. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She also contended that the petitioners are history sheeters. The ninth accused is involved in three other cases, and the accused 10 and 11 are also involved in one case each outside the state of Kerala. If the petitioners are released on bail, there is a likelihood of them committing similar offences. Hence, the application may be dismissed.

The prosecution allegation against the petitioners is that, they, in furtherance of their common intention to the other accused, have deceived the defacto complainant and made him invest an amount of Rs.90,36,284/- by promising him remuneration. However, they did not pay any remuneration or return his capital. The fact remains that the petitioners have been in judicial custody for the last 50 days, the investigation in the case is complete, and recovery has been effected. Moreover, the Court of Session has enlarged the fifth accused on bail as already mentioned above.

It  is  well  settled  in  Hussainara  Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], that merely because a person has an antecedent, the same shall not be treated as a ground to deny bail to that person.

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.

In Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India.

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 on the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioners have been in judicial custody for the last 50 days, the investigation in the case is complete, recovery has been effected, and further that the Court of Session has already enlarged the fifth accused on bail, 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) 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.

(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 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].