Aswin M Sasi v. State of Kerala

BAIL APPL. NO. 3018 OF 2024 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 BAIL APPL. NO. 3018 OF 2024** **CRIME NO.10/2024 OF CYBER CRIME POLICE STATION, ERNAKULAM** **RURAL, Ernakulam** **AGAINST THE ORDER/JUDGMENT DATED 02.04.2024 IN CMP NO.3818 OF 2021 OF CHIEF JUDICIAL MAGISTRATE, ERNAKULAM PETITIONER/S:** **ASWIN M SASI AGED 25 YEARS S/O SASIDHARAN, MALAYIL HOUSE KALLIKOODAM ROAD, FEROKE, KOZHIKODE,, PIN - 673631** **BY ADVS. DHEERAJ KRISHNAN PEROT VINEETHA A.A. SREERAG S. ARYA DEVASIA MEGHA SREEPRIYA K.U.** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** ## **OTHER PRESENT:** **SR.P.P. SMT.NEEMA.T.V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3018 OF 2024 2 Dated this the 23[rd] day of April, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 3[rd] accused 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 petitioner was arrested on 21.03.2024. 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/- in six transactions to the BAIL APPL. NO. 3018 OF 2024 3 accused. Thus, the accused have committed the above offences. 3. Heard; Sri.Dheeraj Krishnan Perot, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. The petitioner had no knowledge of the amounts that were transferred to his bank account. The petitioner is the sole bread winner of his family. He has been in judicial custody for the last more than one month. The investigation in the case is complete and recovery has been effected. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the BAIL APPL. NO. 3018 OF 2024 4 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. The recovery is to be effected. If the petitioner is released on bail, there is every chance of him 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. 7. In **Dataram Singh v. State of U.P.,** [(2018) 3 BAIL APPL. NO. 3018 OF 2024 5 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. 8. 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. 9. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable BAIL APPL. NO. 3018 OF 2024 6 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. 10. 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. 11. 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 petitioner has been in judicial custody for the last more than one month, the investigation in the case, so far as the petitioner is concerned, is practically BAIL APPL. NO. 3018 OF 2024 7 complete and recovery has been effected, and further that the petitioner does not have any criminal antecedents, 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 filed. 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 BAIL APPL. NO. 3018 OF 2024 8 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) 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 to effect recoveries on the - necessary, BAIL APPL. NO. 3018 OF 2024 9 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]. sd/- **C.S.DIAS, JUDGE** rkc/23.04.24 BAIL APPL. NO. 3018 OF 2024 10 ## **APPENDIX OF BAIL APPL. 3018/2024** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF THE FIR 10/2024 CYBER CRIME POLICE STATION, ERNAKULAM RURAL Annexure A 2 TRUE COPY OF THE REMAND REPORT DATED 2103-2024 I AnnexureA 3 TRUE COPY OF THE COMMON ORDER IN C.M.P 3818/2024 DATED 02-04-2024**