High Court of KeralaSingle Judge2020-08-17Bail application allowed

B.A. NO.2240 OF 2020

Case / Petition Number:B.A. NO.2240 OF 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2020-08-17
Court Decision / Holding: Bail allowed under Section 438 CrPC with stringent conditions as enumerated in the order (appearance before IO within ten days; bond of Rs.50,000 with two sureties; continued cooperation; no leaving India without court permission; no commission of similar offenses; weekly appearances on Mondays; adherence to COVID-19 distancing guidelines; and potential cancellation if any condition is violated).
Final Disposition: Bail application allowed

Parties to the Case

Appellants / Petitioners

Babu

Respondents

State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri B. Raman Pillai (Sr.)
• Sri R. Anil
• Sri M. Sunilkumar
• Sri Sujesh Menon V.B.
• Sri T. Anil Kumar
• Sri Thomas Abraham (Nilackappillil)
• Sri Mahesh Bhanu S.
• Smt. Lakshmi Sankar

Counsels for Respondents

• Renjith T.R., Public Prosecutor

Case Synopsis & Summary

This is a bail application under Section 438 CrPC filed by Babu, the first accused in Crime No.1251 of 2017 registered at Kodakkara Police Station, Thrissur District. The investigation alleges that while the de facto complainant Rajesh B. Menon was abroad, the applicant and others forged a Power of Attorney (Document No. 88/2004) to obtain a sale deed (Document No. 31/06) registered at the Sub Registrar’s Office, Nellay, based on a compromised suit in O.S. No. 173 of 2003 and later proceedings in O.S. No. 221 of 2010 before the Munsiff’s Court, Aluva. The de facto complainant filed a suit seeking nullification of Doc. 88/2004, and a complaint led to the registration of Crime No. 1251/2017. The 2nd accused has already been granted bail under Annexure-G. The petitioner’s counsel urged bail on the grounds that custodial interrogation is not essential in view of the earlier civil actions and a long time has elapsed; he is ready to comply with conditions and to cooperate with the investigation. The Public Prosecutor argued that the accused’s presence is necessary for investigation, with appropriate conditions to ensure cooperation. The Court, recognizing COVID-19 norms and directives from the Supreme Court and Kerala High Court, held that bail can be granted with stringent conditions, drawing on the 2nd accused’s bail order and the need to safeguard the investigation. It granted bail with eight conditions, including appearance before the IO within ten days, bond and sureties, ongoing cooperation, travel restrictions, no new offenses, weekly appearance, adherence to distancing guidelines, and Court power to cancel if violated.

Provisions of Law Cited

Section 438, CrPCSections 420, 406 and 120B IPC

Legal Doctrines & Maxims

Bail is the rule and jail is the exception.
The basic jurisprudence relating to bail remains the same; grant of bail is the rule and refusal is the exception to ensure the accused has the opportunity of securing a fair trial.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel urged that the 2nd accused has already been released on bail under Annexure-G and that custodial interrogation of the first accused is not essential in view of the prior civil actions and the lapse of time. The petitioner is willing to adhere to conditions and to cooperate with the investigation, including appearance before the Investigating Officer within ten days. He relied on the maxim that bail is the rule and jail the exception, and on COVID-19 related directives to minimize prison populations.

Contentions of Respondents

The Public Prosecutor contended that the presence of the accused is necessary for the investigation and that, if bail is granted, strict conditions should be imposed to ensure cooperation. He highlighted the need to balance public interest, the investigation’s needs, and the health considerations arising from the pandemic, while ensuring that the accused does not flee or obstruct justice.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Chidambaram P. v. Directorate of Enforcement	2019 (16) SCALE 870	Positive	Cited to reinforce the principle that bail is the rule and refusal is the exception to ensure the accused has the opportunity for a fair trial.
Re: Contagion of COVID19 Virus In Prisons	Suo Motu Writ Petition(C) No.1 of 2020	Positive	Cited for directions to minimize prison populations and to follow social distancing norms, informing bail considerations during the pandemic.
W.P(C) No.9400 of 2020	W.P(C) No.9400 of 2020	Positive	Full Bench directions on minimizing inmates and following COVID-19 related guidelines relevant to bail decisions.

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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 P.V.KUNHIKRISHNAN** **MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942** ## **Bail Appl..No.2240 OF 2020** **CRIME NO.1251/2017 OF KODAKARA POLICE STATION, THRISSUR DISTRICT.** ## **PETITIONER/ACCUSED NO.1:** **BABU, AGED 39 YEARS S/O.VELAYUDHAN, SASTHAMPARAMBIL HOUSE, PALLIPPURAM DESOM, MARAMPILLY VILLAGE, KUNNATHUNAD TALUK, ALUVA.** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SHRI.MAHESH BHANU S. SMT.S.LAKSHMI SANKAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.** ## **BY SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. NO.2240 OF 2020 2 ## **O R D E R** **Dated this the 17th day of August 2020** ... **This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.** **2. The petitioner is the 1[st] accused in Crime No. 1251 of 2017 of Kodakkara Police Station, Thrissur District. The above case is registered against the petitioner alleging offences punishable under Sections 420, 406 and 120(B) of the Indian Penal Code (IPC).** **3. The aforesaid crime was registered on a complaint filed by one Rajesh B.Menon. In the said complaint filed in the year 2017, it is alleged that while the de facto complainant was abroad, the petitioner herein and another forged a document purporting as a power of attorney and got it registered as Document No. 88 of 2004 on the files of the Sub Registrar’s Office, Nellay. On the** B.A. NO.2240 OF 2020 3 **strength of the said power of attorney, a compromise** **was entered in a Suit which was pending as O.S. No. 173 of 2003 on the file of the Sub Court, Ernakulam. On its basis, the plaintiff and the aforesaid Babu managed to get registered a Sale Deed as Document No.31/06 in respect of an item of property which was owned by the de facto complainant at the office of the Sub Registrar Office, Angamaly, on 20.1.2006. On getting information of fraud played on the de facto complainant by the applicant and others, a suit was instituted as O.S. No.221 of 2010 by the aforesaid Rajesh before the Munsiff's Court, Aluva, seeking various reliefs, including a prayer to declare the Document No.88/2004 as null and void. After about seven years of the institution of the Suit, a complaint was filed leading to the registration of the Crime.** **4. Heard the learned Senior Counsel for the petitioner and the learned public prosecutor.** **5. The learned Senior Counsel appeared for the petitioner submitted that, the 2[nd] accused is already** B.A. NO.2240 OF 2020 4 **released on bail as per Annexure-G order. The Senior Counsel submitted that, the petitioner is ready to abide any conditions, if this Court grant him bail.** **6. The learned public prosecutor submitted that, the presence of the petitioner is necessary for the purpose of investigation. The public prosecutor submitted that, if this Court is granting bail to the petitioner, there may be a direction to the petitioner to co-operate with the investigation.** **7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. The 2[nd] accused in this case was released on bail as per Annexure-G order. The relevant portion of Annexure-G order is extracted hereunder:** **“As rightly submitted by the learned counsel appearing for the applicant, though the Suit was instituted in the year 2010 levelling more or less similar allegations, the Crime was registered only in the year 2017. In the facts and circumstances, the custodial interrogation of the applicant does not appear to be necessitous. Necessary conditions can be incorporated to safeguard the interest of the prosecution and to ensure that the investigation is** B.A. NO.2240 OF 2020 5 **carried out in a fair and effective manner. In the result, this application will stand allowed.”** **In the light of Annexure-G order, there is no justification in denying bail to the petitioner who is the 1[st] accused in this case.** **8. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in Re: Contagion of COVID19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020) and a Full Bench of this Court in W.P(C)No.9400 of 2020 issued various salutary directions for minimizing the number of inmates inside prisons.** **9. Moreover, it is a well accepted principle that, the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram P. v. Directorate of Enforcement (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail** B.A. NO.2240 OF 2020 6 **is the rule and refusal is the exception so as to ensure that, the accused has the opportunity of securing fair trial.** **10. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:** ## **1. The petitioner shall appear** **before the Investigating Officer within ten days from today and shall undergo interrogation;** ## **2. After interrogation, if the** **Investigating Officer proposes to arrest the petitioner, he shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned;** ## **3. The petitioner shall appear** B.A. NO.2240 OF 2020 7 **before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise 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;** ## **4. The petitioner shall not leave** **India without permission of the Court;** **5. The petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected;** **6. The petitioner shall appear before the investigating officer on all Mondays' at 10 a.m. till a final report in Crime No.1251 of 2017 of** B.A. NO.2240 OF 2020 8 ## **Kodakkara Police Station is filed;** **7. The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic;** **8. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court.** **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**