High Court of KeralaSingle Judge2024-05-24Application allowed; bail granted with conditio...

Abdul Khader and Amir P.K. v. State of Kerala

Case / Petition Number:BAIL APPL. NO. 3917 OF 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2024-05-24
Court Decision / Holding: The application is allowed; bail is granted to the petitioners on a bond of Rs. 1,00,000 with two solvent sureties of Rs. 1,00,000 each, subject to specified conditions including appearance before the Investigating Officer every Saturday, not to influence witnesses or tamper with evidence, not to commit any offences, surrender of passport, and potential cancellation of bail for breaches.
Final Disposition: Application allowed; bail granted with conditions as stated above.

Parties to the Case

Appellants / Petitioners

Abdul Khader
Amir P.K

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Hamzath Ali V.K.
• Ayisha Afrin A.V.K.

Counsels for Respondents

• Public Prosecutor, High Court of Kerala
• Smt. Seetha S., Sr.PP.

Case Synopsis & Summary

Petitioners Abdul Khader and Amir P.K., applicants before the Kerala High Court, seek bail under Section 439 CrPC in Crime No.10/2024 of the Cyber Crime Police Station, Ernakulam Rural. The prosecution alleges that, in furtherance of a common intention, the accused duped the defacto complainant by impersonating Mumbai Colaba Police Station and persuading him to transfer Rs.1,15,00,000 in six transactions. The petitioners were arrested on 26.03.2024 and have remained in judicial custody for 58 days; the investigation is stated to be complete and recovery effected. Annexure A4 shows that the 3rd accused has already been granted bail. The petitioners’ counsel contends innocence and false implication, asserting they had no knowledge of the sum transferred and that similar bail orders have been granted to the 3rd accused, warranting identical treatment. The Public Prosecutor counters that investigation is ongoing, the accused siphoned off the money, and there is a real possibility of tampering with evidence or intimidating witnesses if released. The court cites Sanjay Chandra v. CBI (2012) for the presumption of innocence and bail as a rule, and State of Kerala v. Raneef (2011) to emphasize Article 21 protections against indefinite detention. It also references Sushila Aggarwal to justify imposing conditions and the potential for cancellation of bail. After balancing the circumstances, the court allows the application and grants bail subject to conditions including bond, sureties, appearance, non-tampering, passport surrender, and possible cancellation on breach.

Provisions of Law Cited

Section 439 of the Code of Criminal Procedure, 1973Section 420 read with Section 34 of IPCSection 66D of the Information Technology Act, 2000

Legal Doctrines & Maxims

Presumption of innocence until proven guilty
Bail is the rule and jail is the exception (Article 21)
Right to life under Article 21 and protection against arbitrary detention

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend they are innocent and have been falsely implicated; they deny knowledge of the transferred amounts and submit that they have already spent 58 days in custody while the investigation is reportedly complete. They point to Annexure A4 showing bail for the 3rd accused and urge parity in treatment; they argue that continued detention is unnecessary and that bail with appropriate conditions will not impede justice.

Contentions of Respondents

The State/Prosecution argues that investigation is ongoing, substantial funds were siphoned, and there is a real risk of tampering with evidence or intimidating witnesses if bail is granted; they request denial of bail until the final report is filed.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Sanjay Chandra v. CBI	2012 (1) SCC 40	Positive	Used to affirm the presumption of innocence and that imprisonment pre-conviction should not be the basis to deny bail.
State of Kerala v. Raneef	2011 (1) SCC 784	Positive	Cited to support the principle that bail is the rule in the context of Article 21 protections against prolonged detention.
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited to justify the authority to impose bail conditions and, if necessary, to cancel bail, while allowing ongoing investigations and recoveries.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 24[TH] DAY OF MAY 2024 / 3RD JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3917 OF 2024 ``` ``` CRIME NO.10/2024 OF CYBER CRIME POLICE STATION, ERNAKULAM RURAL, ``` ``` Ernakulam ``` ``` AGAINST THE ORDER/JUDGMENT DATED 30.04.2024 IN CRMC NO.1320 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ARISING OUT OF THE ORDER/JUDGMENT DATED 08.04.2024 IN CRMP NO.3925 OF 2024 OF CHIEF JUDICIAL MAGISTRATE, ERNAKULAM ``` ## `PETITIONER/S:` ``` 1ABDUL KHADER AGED 59 YEARS C/O HAMMAD KUNHI HAJEE BELMA NARINGANA, CRESCENT MANSA APARTMENT, PANICKER ROAD, SREEROSH SEA FACE, NADAKKAVU, KOZHIKODE, KERALA, PIN - 673011 ``` ``` 2AMIR P.K AGED 29 YEARS S/O ABDUL MAJEED P.K., BAITHUL ANWAR, PALLATHANCHERY, PAINGOTTUPURAM, KUNNAMANGALAM, KOZHIKKODE, KERALA, PIN - 673571 ``` ``` BY ADVS. HAMZATH ALI V.K. AYISHA AFRIN A.V.K. ``` ## `RESPONDENT/S:` ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SMT.SEETHA S., SR.PP. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 3917 OF 2024 ``` 2 ## Dated this the 24[th] day of May, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 5 and 6 in Crime No.10/2024 of the Cyber Crime Police Station, Ernakulam, registered against the accused, for allegedly committing the offences punishable under Section 420 r/w. Section 34 of the Indian Penal Code (in short, 'IPC') and Section 66D of the Information Technology Act. The petitioners were arrested on 26.03.2024. 2. The gist of the prosecution case is that: the accused, in furtherance of their common intention, to cause wrongful loss to the defacto complainant called him on his mobile phone and told that they were calling from the Mumbai Colaba Police Station, and that a warrant of arrest was pending against him from the Honourable Supreme Court and made him transfer an amount of Rs.1,15,00,000/- to the accused in six ``` BAIL APPL. NO. 3917 OF 2024 ``` 3 transactions. Thus, the accused have committed the above offences. 3. Heard; Sri.Hamzath Ali V.K., the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have been falsely implicated in the crime. The petitioners have no knowledge of the amounts that were transferred to their bank accounts. The petitioners have been in judicial custody for the last 58 days, the investigation in the case is complete and recovery has been effected. Moreover, by Annexure A4 order, this Court has enlarged the 3[rd] accused on bail. The petitioners are entitled to the benefit of a similar order. Hence, the application may be allowed. ``` BAIL APPL. NO. 3917 OF 2024 ``` 4 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She further stated that the accused have siphoned off Rs.1,15,00,000/- of the defacto complainant. If the petitioners are released on bail, there is every chance of them tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed. 6. 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. ``` BAIL APPL. NO. 3917 OF 2024 ``` 5 7. In State of Kerala v. Raneef, [(2011) 1 SCC 784], the Honourable Supreme Court has declared that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. 8. The principle that bail is the rule and jail 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. 9. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, and on considering the fact that the petitioners have been in judicial custody for the last 58 days, the investigation in the case is practically ``` BAIL APPL. NO. 3917 OF 2024 ``` 6 complete, recovery has been effected and further that this Court has already enlarged the 3[rd] accused on bail as per Annexure A4 order, I am of the view that the petitioners' further detention is unnecessary. Hence, I am inclined to allow the application. 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) 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 Officer on - Investigating every Saturday between 9 a.m. and 11 a.m till the final report is filed. 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 ``` BAIL APPL. NO. 3917 OF 2024 ``` 7 case so as to dissuade them 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 passport, if any, before the court below at the time of execution of the bond. If they have no passport, they 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) 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 ``` BAIL APPL. NO. 3917 OF 2024 ``` 8 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]. sd/C.S.DIAS, JUDGE rkc/24.05.24 ``` BAIL APPL. NO. 3917 OF 2024 ``` 9 ## `APPENDIX OF BAIL APPL. 3917/2024` ## `PETITIONER ANNEXURES` |`Annexure A1`|`A TRUE COPY OF THE FIR REGISTERED BY THE`| |---|---| ||`CYBER CRIME POLICE STATION - ERNAKULAM`| ||`RURAL AS PER CRIME NUMBER 10/2024 DATED`| ||`16.03.2024`| |`Annexure A2`|`A TRUE COPY OF THE ORDER OF THE HON'BLE`| ||`CHIEF`<br>`JUDICIAL`<br>`MAGISTRATE`<br>`COURT,`| ||`ERNAKULAM DATED 08.04.2024 IN CMP. NO.`| ||`3925 OF 2024`| |`Annexure A3`|`A TRUE COPY OF THE ORDER OF THE HON'BLE`| ||`SESSION COURT (VACATION), ERNAKULAM`| ||`DATED 30.04.2024 IN CRL. MC. NO. 1320 OF`| ||`2024`| ``` Annexure A4A TRUE COPY OF THE ORDER OF THE HON'BLE HIGH COURT OF KERALA DATED 23.04.2024 IN CRL. MC. NO. 3018 OF 2024 ```