Stephy V. Subash vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 2nd accused in Crime No.657/2024 of the Ettumanoor Police Station, Kottayam, which is registered against the accused for allegedly committing the offences punishable under Sections 406 and 420 r/w Section 34 of the Indian Penal Code (in short, 'IPC'). The petitioner was arrested on 16.05.2024.

The gist of the prosecution case is that: the accused, in furtherance of their common intention to make wrongful gain for themselves and wrongful loss to the defacto complainant, made the defacto complainant believe that they would secure him an employment visa in Poland. Accordingly, they received Rs.2,85,000/- from the defacto complainant. However, the accused failed to secure the employment or return the money. Thus, the accused have committed the above offences.

Heard; Sri.Shajin S.Hameed, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against her. A reading of Annexure-A FIR would substantiate that the petitioner was only a paid employee of the 1st accused, who was the Managing Director of a company. The petitioner has not received any monetary benefit from the transaction other than for receiving her monthly salary. In any given case, the petitioner is a lady and she has been in judicial custody for the last 46 days, the investigation in the case, so far as the petitioner is concerned, 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 is in progress. She also stated that if the petitioner is released on bail, there is every likelihood of her tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed.

The prosecution allegation against the accused is that, they induced the defacto complainant to pay the money on the assurance of securing him an employment visa in Poland. However, the accused failed to secure the visa or return the capital. The fact remains that the petitioner has been in judicial custody for the last 46 days, the petitioner was only a paid employee of the company, the investigation in the case is practically complete.

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 a 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.

On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last 46 days, the petitioner was only a paid employee of the company, that the investigation in the case is complete and recovery has been effected, I am of the firm view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the bail application.

In the result, the application is allowed, by directing the petitioner to be released on bail on her executing a bond for Rs.50,000/- (Rupees Fifty Thousand 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. She 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 her 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 she is on bail;

iv. The petitioner shall surrender her passport, if any, before the court below at the time of execution of the bond. If she has no passport, she shall file an affidavit 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. Application 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 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].