High Court of KeralaSingle JudgeBail granted to all accused after considering s...

Bail Applications (BA Nos.8674 & 9318 of 2019)

Case / Petition Number:BA Nos.8674/2019; 9318/2019

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. V. Kunhikrishnan
Judgment Date
2020-07-13
Court Decision / Holding
The Bail Applications are allowed. Accused Nos.1-5 shall appear before the Investigating Officer within ten days and undergo interrogation. After interrogation, if the IO proposes arrest, the accused shall be released on bail on a bond of Rs.50,000 with two solvent sureties for the like sum. The accused shall appear as required, cooperate with the investigation, and shall not threaten or influence witnesses or tamper with evidence. They shall comply with social distancing guidelines during confinement and in prison. If any condition is violated, the bail can be cancelled. The orders also reflect the settled position that bail is the rule and jail is the exception, particularly in light of COVID-19 related directives.
Final Disposition
Bail granted to all accused after considering settlement and COVID-19 context; conditions imposed.

Parties to the Case

Appellants / Petitioners

  • Sarath.B, aged 34 years, S/O Balakrishnan, Gokulam House, Mugurkodi, Padavinagady, Konchady P.O., Mangalore-575 008
  • LabeeB.M., aged 40 years, S/O K.P.AbdU, Director, EdGrow Overseas (P) Ltd., OP P Central Square, MG Road, Ernakulam-682035
  • Hashir K., aged 28 years, S/O Muhammed, Manager, Jacob D D Mall, 1st Floor, Edu World International, MG Road, OP P Central Square, Ernakulam-682035
  • Sumiya Shihas, Branch Manager, Edu World International, Corporate Office, OP P IBIS, Ravis Arcade, MG Road, Ernakulam-682035
  • Shibu S.Pilla i, National Head Operation, Edu World International, OPP Central Square, MG Road, Ernakulam-682035

Respondents

  • The Sub Inspector of Police, Central Police Station, Ernakulam-682031
  • The Assistant Commissioner of Police, Central Police Station, Ernakulam-682031
  • The State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam-682031
  • Augustine K.J., aged 50 years, S/O John, Kurisuveettill House, Janatha Colony Lane, SRM Road, Pachalam Desom, Kanayannur Taluk, Ernakulam-682012
  • Vasanthi K.S., aged 50 years, W/O Biju, Kadampuzha House, Chavakkad Taluk, Thycaud Village, Thrissur District-680506

Legal Representation & Advocates

Counsels for Petitioners

  • • T.G. Rajendran
  • • T.R. Tarin

Counsels for Respondents

  • • Sri. V. John Sebastian
  • • Sri. V. John Thomas
  • • Shri. Vishnu Chandran
  • • Kum. Keerthana Sudev

Case Synopsis & Summary

These Bail Applications under Section 438 CrPC relate to accused in Crime No.2026/2019 of Ernakulam Central Police Station. The petitioners across two bail applications, BA Nos.8674/2019 (accused 1-5) and 9318/2019 (accused 1-4), face charges under Sections 406 and 420 read with Section 34 IPC, alleging illicit arrangements in sending nine students to Smolensk State Medical University in Russia for a fee around Rs 14 lakhs. The prosecution asserts that the accused created and managed the arrangement and failed to account for the funds after the students switched universities. During hearing, counsel for petitioners and the defacto complainant submitted that there is a settlement and part payment has already been received, with further payment promised within a week. In light of the COVID-19 pandemic, the court also cites Supreme Court and Kerala High Court directives aimed at minimizing prison populations and promoting social distancing. The judge reiterates the long-standing bail principle that bail is the rule and jail is the exception, citing Chidambaram P v Directorate of Enforcement. Accordingly, the court grants bail subject to conditions: appearance before the IO within ten days; arrest, if proposed, to be followed by a bail bond of Rs.50,000 with two solvent sureties; ongoing cooperation and non-tampering with witnesses; compliance with COVID-19 guidelines; and potential cancellation if any condition is violated. The bail is thus allowed in both applications.

Provisions of Law Cited

Section 438 of Cr.P.C.Sections 406 and 420 read with 34 IPC

Legal Doctrines & Maxims

  • Bail is the rule and jail is the exception

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners, along with the defacto complainant, contended that there is a settlement with part payment already made and a promise to pay the balance within a week. They urged that the ongoing COVID-19 pandemic justifies bail to ensure fair trial and to minimize prison populations in line with Supreme Court directions and Kerala HC Full Bench guidance. They invoked the settled bail principle that bail is the rule and jail is the exception, citing Chidambaram P v Directorate of Enforcement, and argued the need for release with reasonable conditions to enable cooperation with investigations and avoid witness tampering.

Contentions of Respondents

The respondents’ written submissions are not detailed in the order; the record shows acknowledgment of a settlement and partial payment. The court relies on established bail law and public health directives, emphasizing the necessity to protect the accused' right to fair trial while preventing crowding in prisons. The core argument centered on weighing settlement and COVID-19 considerations against the ongoing investigation.”} ,

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Chidambaram P. v Directorate of Enforcement2019 (16) SCALE 870PositiveAffirms bail as the rule and jail as the exception, supporting grant of bail where appropriate.
Re: Contagion of COVID-19 Virus In Prisons caseSuo Motu Writ Petition(C) No.1 of 2020Mentioned OnlyCited for background directions on minimizing prison population and social distancing during the pandemic.
W.P(C) No.9400 of 2020—Mentioned OnlyFull Bench directions referenced in context of pandemic-related bail considerations.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**BA Nos.8674 & 9318 of 2019** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942** ## **Bail Appl..No.8674 OF 2019** **(CRIME NO. NOT KNOWN TO THE PETITIONER)** ## **PETITIONER/ACCUSED:** **SARATH.B, AGED 34 YEARS S/O BALAKRISHNAN, GOKULAM HOUSE, MUGURKODI, PADAVINAGADY, KONCHADY P.O., MANGALORE-575 008.** **BY ADVS. SRI.T.G.RAJENDRAN SRI.T.R.TARIN** ## **RESPONDENTS/COMPLAINANT AND STATE:** **1 THE SUB INSPECTOR OF POLICE CENTRAL POLICE STATION, ERNAKULAM-682 031.** - **2 THE ASSISTANT COMMISSIONER OF POLICE, CENTRAL POLICE STATION, ERNAKULAM-682 031.** - **3 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **4 AUGUSTINE K.J, AGED 50 YEARS, S/O.JOHN, KURISUVEETTIL HOUSE, SRM ROAD, PACHALAM DESOM, KANAYANNUR TALUK, ERNAKULAM-682 012.** **5 VASANTHI K.S, AGED 50 YEARS, W/O.BIJU, KADAMPUZHA HOUSE, CHAVAKKAD TALUK, THYCAUD VILLAGE, TRICHUR DISTRICT-680 506.** **BA Nos.8674 & 9318 of 2019** **2** **R4 BY ADV. SRI.V.JOHN SEBASTIAN RALPH R4 BY ADV. SRI.V.JOHN THOMAS R4 BY ADV. SHRI.VISHNU CHANDRAN R4 BY ADV. KUM. KEERTHANA SUDEV** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.07.2020, ALONG WITH Bail Appl..9318/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BA Nos.8674 & 9318 of 2019** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942** **Bail Appl..No.9318 OF 2019** **CRIME NO.2026/2019 OF Ernakulam Central Police Station , Ernakulam** ## **PETITIONER/ACCUSED:** |**1**|**LABEEB M.K**| |---|---| ||**AGED 40 YEARS**| ||**S/O.K.P.ABDU, DIRECTOR,**| ||**EDGROW OVERSEAS (P) LTD.,**| ||**OPP.OF CENTRAL SQUARE,**| ||**M.G.ROAD, ERNAKULAM-682035.**| |**2**|**HASHIR K.,**| ||**AGED 28 YEARS**| ||**S/O.MUHAMMED, MANAGER, JACOB D D MALL,**| ||**1ST FLOOR, EDU WORLD INTERNATIONAL,**| ||**M.G ROAD, 35 OPP.OF CENTRAL SQUARE,**| ||**ERNAKULAM-682035.**| |**3**|**SUMIYA SHIHAS,**| ||**BRANCH MANAGER, EDU WORLD INTERNATIONAL,**| ||**CORPORATE OFFICE, OPP.IBIS,**| ||**ABOVE CITY BANK, RAVIS ARCADE,**| ||**M.G.ROAD, ERNAKULAM, KOCHI-682035.**| |**4**|**SHIBU S.PILLAI,**| ||**NATIONAL HEAD OPERATION,**| ||**EDU WORLD INTERNATIONAL, OPP.CENTRAL SQUARE,**| ||**M.G ROAD, ERNAKULAM, KOCHI-682035.**| **BY ADVS. SRI.T.G.RAJENDRAN SRI.T.R.TARIN** **BA Nos.8674 & 9318 of 2019** **4** ## **RESPONDENTS/COMPLAINANT/STATE:** - **1 THE SUB INSPECTOR OF POLICE CENTRAL POLICE STATION, ERNAKULAM-682031.** - **2 THE ASSISTANT COMMISSIONER OF POLICE, CENTRAL POLICE STATION, ERNAKULAM-682031.** - **3 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** - **4 AUGUSTINE K.J., AGED 50 YEARS S/O.JOHN, KURISUVEETTIL HOUSE, JANATHA COLONY LANE, SRM ROAD, PACHALAM DESOM, KANAYANNUR TALUK, ERNAKULAM-682012.** - **5 VASANTHI K.S., AGED 50 YEARS W/O.BIJU, KADAMPUZHA HOUSE, CHAVAKKAD TALUK, THYCAUD VILLAGE, TRICHUR DISTRICT-680506.** ## **SR.PP. D. CHANDRASENAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.07.2020, ALONG WITH Bail Appl..8674/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BA Nos.8674 & 9318 of 2019** **5** ## **O R D E R** ## **[ Bail Appl.8674/2019, Bail Appl..9318/2019 ] Dated this the 13th day of July 2020** These Bail Applications are filed under Section 438 of Criminal Procedure Code. 2. The petitioners are accused Nos.1 to 5 in Crime No.2026/2019 of Ernakulam Central Police Station. The petitioners in B.A.No.9318/2019 are accused Nos.1 to 4 and petitioner in B.A.No.8674/2019 is the 5[th] accused. Since the accused in the same crime filed these two bail applications, I am disposing these bail applications by a common order. The above case is registered against the petitioners alleging the offence punishable under Sections 406 and 420 r/w 34 IPC. 3. The admitted prosecution case is that 9 students including the party respondents in these bail applications were admitted in Smolensk State Medical University, Russia through the accused for a sum of Rs.14 lakhs including tuition fees, medical insurance and university requirements. It is submitted that subsequently, the fees structure was changed and the amount was enhanced. Annexure A1 is the original agreement. The case of the prosecution is that the students changed their university **BA Nos.8674 & 9318 of 2019** **6** and the petitioners have not paid the amount due to them. 4. When this matter came up for consideration, the learned counsel for the petitioners and the defacto complainant submitted that there is a settlement and part payment is already received by the defacto complainant. According to the defacto complainant, the petitioners offered to pay the balance amount within a week. 5. Considering the facts and circumstances of this case, I think these bail applications can be allowed especially for the reason that there is a settlement between the parties and the part payment is already given by the petitioners to the defacto complainant. 6. 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. 7. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme **BA Nos.8674 & 9318 of 2019** **7** 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. 8. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, these Bail Applications are allowed with the following directions: 1. The petitioners shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned. 3. The petitioners shall appear before the Investigating Officer as and when required. The **BA Nos.8674 & 9318 of 2019** **8** petitioners shall co-operate with the investigation and shall not threaten or attempt to influence the witnesses or tamper with the evidence. 4. The petitioners 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. 5. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **ab**