State of Kerala vs Sajeev Mathew

N. Dhinakar, J.—Cr. M.C. 1470/95 is by the State, to set aside the order of the Addl. Chief Judicial Magistrate, Ernakulam, releasing the respondent, first accused, in Crime No. 118/95 on the file of the Hill Palace Police Station, on bail and to order his police custody for the purpose of investigation in the said crime Number. Crl. M.C. 1458/95 is a petition filed by accused 2 to 4 for anticipatory bail in the same crime number.

Crl. R.C. 9/95 is taken suo motu by the High Court, on the orders of My Lord The Chief Justice, to consider the propriety of the orders of the learned Addl. Chief Judicial Magistrate, Ernakulam, in granting bail to the 1st accused.

As the issue to be decided in all the above matters is the same, the following common order is being passed.

Shorn of all unnecessary details, few facts do need mentioning. On a complaint given by a Sam Joseph, Cochin, on 8-8-1995, a case in Crime No. 118/95 was registered at Hill Palace Police Station against the accused 1 to 4 (the respondent in Crl. M.C. 1470/95, and the petitioners in Crl. M.C. 1458/95 respectively and they will be referred as accused in this order for the sake of convenience) for an offence punishable u/s 420 read with Section 34 I.P.C. The sum and substance of the complaint, is that the first accused is the Managing Trustee of Alagananda Farm Trust and accused 2 to 4 are the trustees. Accused 1 to 4 are related to each other. The 2nd accused is the wife of the 1st accused and Accused 3 and 4 are his cousin brothers. They have advertised in various newspapers, that the trust has started goat farms at various places such as Pollachi, Tirunelveli and Kodaikanal, all situate in the State of Tamilnadu, and those who purchase sponsorship certificate valued at Rs. 1,000/- will get back rupees twenty thousand on the invested amount after a period of five years. It was also informed that on such purchases of the sponsorship certificate, an Indira Vikas Patra, whose sale value is at Rs. 500/ -, but whose maturity value is Rs. 1,000/-, will also be given, to the purchase of the sponsorship- certificate. In short, the purchasers of the sponsorship certificates were assured a return of forty times in five years, on their original investment of Rs. 1,000/- as the amount of Rs. 500/- out of the amount of Rs. 1,000/- is returned to the purchaser immediately in the form of an Indira Vikas Patra and only Rs. 500/- is retained.

The complainant Sam Joseph, lured by these advertisements, purchased 2 units of sponsorship certificates of Rs. 1,000/- each and was given 2 certificates, one in the name of his mother and the other in his name. He was also given two Indira Vikas Patras. The certificates were dated 28-10-1994. On 26-6-1995, the complainant went to the office of the Alagananda Farm Trust and returned the two Indira Vikas Patras, by way of reinvestment and obtained sponsorship certificates, whose maturity value was to be at Rs. 40,000/- Later, the complainant grew suspicious, as some of the advertisements later published, showed that the farm has completed 3 years of successful service, whereas the Trust was said to have been registered only in the year 1994 and also because, the two certificates dated 28-10-1994 were in the name of Alagananda Farm Enterprises and the later certificates received by him on 26-6-1995 were issued in the name of Alagananda Farm Trust. The complainant, went and met the 1st accused who told him that they have a farm only at Tirunelveli and not at other places as advertised by them. The complainant, on verification and enquiry came to know, that the accused have not purchased any property anywhere and were not running any goat farm at all. On the above allegations, a complaint was laid with the Hill Palace Police Station which was registered as a crime as stated above.

The 1st accused was arrested on 9-8-1995 and was produced before the Addl. Chief Judicial Magistrate, Ernakulam, on 10-8-1995 with a remand report. A petition was also filed by the investigating officer before the said court, along with the remand report, seeking police custody of the 1st accused for the effective investigation of the crime. According to the prosecution, even during the short period of two days investigation ie. between 8-8-1995 and 10-8-1995, the investigating officer came across materials to show, that more than 4 crores of rupees were collected by all the accused from various individuals.

The magistrate, on receipt of the remand report and the petition seeking police custody of the 1st Accused, without passing any orders on the petition for police custody released the 1st Accused on interim bail till next day ie. 11-8-1995. In the remand application, he has passed the following orders:

The accused who signed above is produced at 3.30 p.m. He has no complaint against the police. Remanded to sub jail till 24-8-95. He states that he was arrested on 8-8-95 morning.

Underneath the same order, another order of even date was passed by the magistrate as follows:

Interim bail till 11-8-1995.

This order of granting interim bail, seems to have been passed on the plea of the accused seeking bail. The bail petition, Crl. M.P. 706/95 was ultimately heard on 14-8-1995 and the order dated 16-8-1995 was pronounced releasing the accused on bail and the accused continued to be on interim bail till the final order dated 16-8-1995 was passed in his favour.

The question, that now arises for consideration, is whether, the magistrate was justified in releasing the accused on bail and whether the said order has to be set aside, by committing the accused to custody after cancelling the bail granted to him.

The Public Prosecutor submitted that the learned magistrate has erred in granting bail to the 1st Accused, without considering the plea of the investigating officer, for the police custody. He further argued, that in a case of this nature, the custody of the accused in very essential, during, at least for a short period of investigation, as the monies collected and secreted by the accused and the documents which will be invaluable for investigation have to be unearthed. It is also necessary, submitted the Public Prosecutor, that the connections and connivance of the other individuals in the crime, have to be investigated and found out and the custody of the accused is very much essential for an effective investigation of all these matters. Per contra, counsel for the accused, submitted that once an order granting bail is ordered it shall not be cancelled and also referred to the rulings of the Supreme Court to buttress his argument. He submitted, that in "The State through the State (Delhi Administration) Vs. Sanjay Gandhi, the apex court of this country held that "rejection of bail when bail applied for is one thing, cancellation of bail already granted is another" and hence bail shall not be cancelled. He also relied upon Bhagirathsinh Judeja Vs. State of Gujarat, , Aslam Babalal Desai Vs. State of Maharashtra, and D.K. Jain and Others Vs. State of Haryana and Others, . According to the counsel, the complaint does not show any offence punishable u/s 420 I.P.C.

I will first take up the argument, whether any offence is made out on the complaint. In the complaint, the complainant has averred, that though the accused have advertised that they have farms at three different locations at Tamilnadu and a new farm was to be commenced by May, 1995 at Annakulam village of Tenkasi, also situate in Tamilnadu, on questioning, the 1st accused admitted, that they have only one goat farm at Tirunelveli and even that Was found to be non-existent on his enquiry. According to the complaint the accused have falsely advertised that they are engaged in goat farming and have goat farms functioning at different places in Tamilnadu and on enquiry none of them were found to be existing and by such false advertisements, the accused have cheated and collected crores of rupees from various individuals. In my view, prima facie, the allegations make out an offence punishable u/s 420 I.P.C.

The next question, that has to be decided, is whether the bail granted to the 1st Accused by the Addl. Chief Judicial Magistrate, Ernakulam, has to be cancelled.

It is not in dispute, that the 1st accused, was arrested and produced before the magistrate on 10-8-1995, with a remand application and also with a petition seeking his police custody for an effective investigation. The magistrate, without first considering the request of the police for the police custody, had chosen to release the accused on interim bail. This, by itself, is very curious to me. The magistrate, first ought to have considered the request of the investigating officer. Only when the police custody sought for is found to be unnecessary, the magistrate ought to have considered the plea of the accused for, bail. The fact that magistrate released the accused on interim bail, immediately on being produced before him, without even considering the request of the police for police, custody, has certainly caused prejudice to the investigating agency. In a case of this nature, where crores of rupees were alleged to have been swindled by the accused, the necessity of police custody cannot be easily brushed aside, and that too, without any consideration of such a request on its merits. It is also curious, that the magistrate having decided to remand the accused to judicial custody till 24-8-1995, as extracted by me in the earlier part of this order, has suddenly decided, to release him on interim bail thereafter, by passing another order on the same date to that effect. It is ununderstandable to me as to why the magistrate changed his mind by releasing the accused on interim bail, after ordering him to remand till 24-8-1995. No reasons are found given in the said order releasing him on interim bail. The said interim bail, ordered on 10-8-1995, was extended from time to time, till finally he was released on bail on 16-8-1995. Even in the final order, passed by the magistrate, granting bail to the accused, he has not adverted to the merits of the investigating officer''s request for the police custody of the accused; but has only chosen to state that after careful examination of the F.I.R. remand report and the application to get the accused to police custody, the accused is to be released on bail. Any careful examination, would certainly result in reasons, which are totally lacking in the order, for the refusal of the police custody. It looks, that the accused was arrested only to be released on bail, by the magistrate. According to the prosecution, even a preliminary investigation reveals, the swindling of more than four crores of rupees, and the custody of the accused is very much necessary and imperative for an effective investigation of the crime. This plea cannot be brushed aside very easily. In my view, for an effective investigation of the nature of allegations stated in the crime, the magistrate ought to have considered the request of the investigating officer before bail was granted.

The ruling in "The State through the State (Delhi Administration) Vs. Sanjay Gandhi, relied upon by the accused''s counsel, will not apply to the facts of this case. That was a case, where the Supreme Court, refused to interfere with the orders of the Delhi High Court, rejecting the plea of the prosecution, to cancel the bail granted to the accused, on the ground that the witnesses have turned hostile during the committal proceedings, on the allegation that the witnesses are being tampered with, during an enquiry before the court. Here the investigation has just commenced and yet to take on its wings all the aspects of the crime.

In Bhagirathsinh Judeja Vs. State of Gujarat, the Supreme Court set aside the order of the Gujarat High Court, cancelling the bail granted to the accused by the Sessions Court, on the ground, that the High Court misdirected itself, and was carried away by the fact, that the deceased in the said case was a social and political worker. Similarly in Aslam Babalal Desai Vs. State of Maharashtra, the Supreme Court set aside the orders of the Bombay High Court, cancelling the bail, granted to the accused by the Sessions Court, by virtue of the provisions of Section 167(2) Crl. P.C. as the charge sheet was not filed within the stipulated time and later, when the prosecution sought cancellation of the bail after filing the charge sheet. The Supreme Court held "that once an accused person has been released on bail by the thrust of the proviso to Sec. 167(2), the mere fact that subsequent to his release a challan has been filed is not sufficient to cancel his bail." The situation here is not so. In D.K. Jain and Others Vs. State of Haryana and Others, the order of the Punjab and Haryana High Court cancelling the anticipatory bail granted by the Sessions Court, was set aside, on the ground that the bail already granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. In the above said case, the accused was charged with an offence related to a dowry death. As I have already held, the magistrate, without any application of mind, on the request made by the investigating officer for the police custody, granted interim bail, immediately after he passed an order remanding the accused to police custody. Rule of caution, had been thrown away to winds, and by his action, the magistrate, in my view, had put spokes in the wheels of justice, at a time when the investigation was at its threshold. It is seen, that the magistrate, did not take into consideration the enormity of the allegations; but released the accused on bail only on the basis of a single complaint though it was alleged that the accused have swindled crores of rupees from various individuals. The power to grant bail is discretionary and the discretion should always exercised with great caution. The order of the magistrate does not even indicate that any attempt was made to ascertain from the investigating officer as to the reason for seeking police custody and the role played by the accused. In my view, the order of the magistrate, granting bail to the 1st Accused, suffers from total non-application of mind and it has to be set aside and accordingly it is set aside. In the result the bail granted to the 1st accused, Sajeev Mathew, the respondent in Crl. M.C. 1470/95, is cancelled and he will immediately surrender to his bail bonds, and on such surrender, the magistrate will consider the plea of the investigating officer for his police custody, in connection with the crime registered by him and pass necessary orders thereon. The Crl. M.C. 1470/95 and Crl. R.C. 9/95 are ordered accordingly. In view of the orders made in Crl. M.C. 1470/95, the anticipatory bail petition filed by accused 2 to 4, in Crl. M.C. 1458/95 is hereby dismissed.