High Court of KeralaSingle Judge2020-08-13Bail granted to petitioner with specified condi...

Bail Application No.173 of 2020: Ignacious Arooja v. State of Kerala

Case / Petition Number:B.A. No.173 of 2020

Neutral Citation:/NULL

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2020-08-13
Court Decision / Holding: The Bail Application is allowed with stringent conditions: (1) petitioner to appear before the IO within 10 days for interrogation; (2) upon arrest by IO, petitioner to be released on bail on a bond of Rs.50,000 with two solvent sureties; (3) petitioner to appear as required and not influence witnesses or tamper with evidence; (4) petitioner shall not leave India without court permission; (5) petitioner shall not commit any similar offence; (6) the 2nd respondent may file an application to cancel the bail if the due amount is not paid within six months; (7) petitioner to adhere to COVID-19 guidelines; (8) the court may cancel bail if any condition is violated; the order underscores the rule of bail and the possibility of cancellation on breach.
Final Disposition: Bail granted to petitioner with specified conditions.

Parties to the Case

Appellants / Petitioners

Ignacious Arooja

Respondents

State of Kerala represented by Public Prosecutor
Jolly (Defacto Complainant)

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Dinesh Mathew J. Muricken

Counsels for Respondents

• Sri. Tom Jose
• Sri. Jobin Jolly
• Sri. HarshaDev M.
• Sri. Surya Mohan P.
• Geetha Job (Ozhukayil)
• Ajith Murali, P.P.

Case Synopsis & Summary

This is a bail application under Section 438 CrPC filed by the 2nd accused Ignacious Arooja in Crime No.2327/2019 of Kothamangalam Police Station (Ernakulam District), alleging offences punishable under sections 406 and 420 IPC. The prosecution's case is that the petitioner and co-accused collected Rs.3,00,000 from the defacto complainant by promising a job at National Hospital, Vaduz Liechtenstein in Switzerland; the job allegedly never materialized and the amount was not returned. The petitioner contends that the defacto complainant was not qualified (German language) and that steps are being taken to repay the money; the defacto complainant accuses misappropriation. The bail petition was heard after mediation attempts failed due to non-appearance of a party. The prosecution seeks interrogation of the petitioner; the defence argues for bail with safeguards. The Court invokes COVID-19 related directives from the Supreme Court and a Kerala High Court Full Bench to minimize prison populations and to balance fair trial with public health concerns. Relying on the principle that bail is the rule and jail the exception (Chidambaram P. v. Directorate of Enforcement), the Court grants bail under stringent conditions: (i) appearance before IO within 10 days; (ii) a bond of Rs 50,000 with two solvent sureties; (iii) cooperation with investigation; (iv) no leaving India without court permission; (v) no commission of similar offences; (vi) 2nd respondent may file cancellation if money is not paid within six months; compliance with COVID-19 guidelines; and potential cancellation if terms are violated. The order reflects a measured approach to balancing liberty with accountability.

Provisions of Law Cited

Section 438 of CrPCSection 406 IPCSection 420 IPC

Legal Doctrines & Maxims

Bail is the rule and the jail is the exception (as reiterated in Chidambaram P. v. Directorate of Enforcement)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that the defacto complainant paid the amount but the job offer was not fulfilled; the accused was not responsible for the non-appointment due to the complainant’s lack of German language proficiency; steps are being taken to return the amount; the defense concedes the seriousness but argues for bail with stringent conditions to ensure cooperation and prevent evasion, while mediation attempts failed because one party did not appear.

Contentions of Respondents

The State contends that the accused’s presence is necessary for interrogation and that the allegations of cheating and misappropriation warrant stringent investigation before any bail should be considered; the defense of non-appointment and non-German language is untenable in light of the prima facie case and the need to secure evidence.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Chidambaram P. v. Directorate of Enforcement	2019 (16) SCALE 870	Positive	Affirms bail as a rule and jail as the exception; supports grant of bail with conditions in this case.
Re: Contagion of COVID-19 Virus In Prisons	Suo Motu Writ Petition(C) No.1 of 2020	Mentioned Only	Cited to justify social distancing and related directions in prisons during the pandemic.
W.P(C) No.9400 of 2020	W.P(C) No.9400 of 2020	Mentioned Only	Full Bench directions regarding minimizing prison populations during COVID restrictions.

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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** **THURSDAY, THE 13TH DAY OF AUGUST 2020 / 22ND SRAVANA, 1942** ## **Bail Appl..No.173 OF 2020** **CRIME NO.2327/2019 OF KOTHAMANGALAM POLICE STATION, ERNAKULAM DISTRICT** ## **PETITIONER/2ND ACCUSED:** **IGNACIOUS AROOJA AGED 49 YEARS S/O. FRANCIS, VENGATTU HOUSE, THOLPETTY POST, THIRUNELLY, WAYANAD DISTRICT, THOLPETTY, PIN - 670 646.** **BY ADV. SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENTS/COMPLAINANT & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 JOLLY AGED 51 YEARS W/O. REJI, KAPRAYIL HOUSE, NELLIKUZHI KARA, ERAMALLOOR (VIA), NELLIKUZHI P. O., ERNAKULAM DISTRICT, PIN - 686 691.** **R2 BY ADV. SRI.TOM JOSE R2 BY ADV. SMT.GEETHA JOB(OZHUKAYIL) R2 BY ADV. SRI.JOBIN JOLLY R2 BY ADV. SMT.HARSHADEV M. R2 BY ADV. SMT.SURYA MOHAN P.** ## **OTHER PRESENT:** ## **R1 BY SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. No.173 of 2020 2 ## **O R D E R** **Dated this the 13th 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 2[nd] accused in Crime No. 2327 of 2019 of Kothamangalam Police Station, Ernakulam District. The above case is registered against the petitioner alleging offences punishable under Sections 406 and 420 of the Indian Penal Code (IPC).** **3. The prosecution case is that, the petitioner and the other accused collected an amount of Rs.3,00,000/- from the defacto complainant offering a job at National Hospital, Vadoz Liechtenstein in Switzerland. The case of the prosecution is that, the petitioner has neither arranged the job nor returned the amount to the defacto complainant.** **4. Heard the learned counsel for the** B.A. No.173 of 2020 3 **petitioner, the learned counsel for the 2[nd]** **respondent and the learned public prosecutor.** **5. The defacto complainant was impleaded as 2[nd] respondent in this case and a lawyer appeared for the** **2[nd] respondent. This matter was referred for mediation. The Nodal Officer reported that, one of the party failed to appear before the mediation and hence the mediation could not be conducted.** **6. This bail application was filed on 8.1.2020. This bail application cannot be kept pending like this. Therefore, I decided to hear this bail application.** **7. The learned counsel for the petitioner submitted that, it is an admitted fact that, the defacto complainant paid the amount. But, the defacto complainant was not qualified for the job because she did not know German lanaguage. The counsel for the petitioner submitted that, the petitioner is taking steps to return the amount to the petitioner. The defacto complainant submitted that, the petitioner misappropriated the amount paid to the petitioner.** B.A. No.173 of 2020 4 **The petitioner has not given the job as offered by him to the defacto complainant. The petitioner has not returned the amount to the defacto complainant. It is a clear case of cheating. The counsel also submitted that, even though the matter was referred for mediation, the petitioner refused to appear before the mediator.** **8. The learned public prosecutor opposed the bail application. The public prosecutor submitted that, the presence of the petitioner is necessary, for interrogation.** **9. After hearing both sides, I think, this bail application can be allowed on stringent conditions. Admittedly, there is some amount is due to the defacto complainant from the petitioner. The counsel for the petitioner submitted that, the petitioner will take earnest effort to return the amount to the defacto complainant. This bail application cannot be kept pending indefinitely. In such circumstances, this bail application can be allowed with liberty to the defacto complainant to file an application to** B.A. No.173 of 2020 5 **cancel the bail order if the amount is not returned within a reasonable time.** **10. 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 COVID-19 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.** **11. 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 is the rule and refusal is the exception so as to ensure that, the accused has the opportunity of securing fair trial.** B.A. No.173 of 2020 6 **12. 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 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** B.A. No.173 of 2020 7 **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 2[nd] respondent (defacto complainant) is at liberty to file an application to cancel the bail order before the jurisdictional court if the amount due to the defacto complainant is not paid within a period of six months. If an application for cancellation of bail order is filed by the 2[nd] respondent before the jurisdictional court, the jurisdictional court can pass appropriate orders in accordance to law after hearing both parties even though this bail is** B.A. No.173 of 2020 8 ## **granted by this Court.** **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/-** **pkk** **P.V.KUNHIKRISHNAN** **JUDGE**