High Court of KeralaSingle Judge2020-07-13Bail applications allowed; bail granted to all ...

Bail Applications Nos. 9243/2019, 9316/2019 and 9376/2019 v. State of Kerala

Case / Petition Number:Bail Appl. Nos. 9243/2019; 9316/2019; 9376/2019

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 with stringent conditions: (1) Accused to appear before the Investigating Officer within ten days for interrogation; (2) if arrest is proposed, release on bail on bond of Rs. 50,000 with two solvent sureties of like amount; (3) cooperation with investigation and no witness tampering; (4) adherence to social distancing guidelines; (5) appearance before the IO every Monday and Friday at 10 a.m. until final report; (6) shall not commit similar offences; (7) shall not enter the jurisdictional limits of Haripad Police Station until final report is filed (with permission to enter for IO appearances); (8) no other breach; (9) violation can lead to cancellation of bail. The order notes bail is the rule and jail the exception, taking into account COVID-19 norms and the need for fair trial.
Final Disposition: Bail applications allowed; bail granted to all three accused with specified conditions.

Parties to the Case

Appellants / Petitioners

Vineeth Chandran
Sharmila Kumari
Rajeev T.P

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam, Kochi - 682 031
The Station House Officer, Haripad Police Station, Haripad, Alappuzha - PIN 690 514

Legal Representation & Advocates

Counsels for Petitioners

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

Counsels for Respondents

• Senior Public Prosecutor D. Chandrasenan

Case Synopsis & Summary

These three bail applications under section 438 CrPC were filed by accused in Crime No. 736/2018 of Haripad Police Station (Alappuzha). The cases allege offences punishable under Sections 420, 465, 467 and 468 read with 34 IPC, arising from the accused allegedly promising to arrange a loan for the defacto complainant and his associate, and collecting substantial sums as advance with no loan being arranged, resulting in a claimed loss of about Rs. 46 lakhs. Counsel for the petitioners contended that even if the allegations are accepted, no offence under sec. 420 IPC is made out and that the petitioners are ready to comply with any conditions for grant of bail. The Public Prosecutor argued that the advances were paid to secure a huge loan and the loan was not arranged, with threat to life evidenced in related materials; the matter requires investigation. The Court noted this is a monetary-transaction case and, given risks of witness tampering and other practical concerns, must be approached with stringent conditions, especially in light of Covid-19 norms. Relying on Re: Contagion of COVID-19 Virus In Prisons (Suo Motu Writ Petition C) No.1 of 2020 and Chidambaram P. v. Directorate of Enforcement (2019) SCALE 870, the court allowed the three bail applications with specific directions to supervise and regulate the investigation.

Provisions of Law Cited

Section 438 CrPCSections 420, 465, 467 and 468 IPC r/w Section 34 IPC

Legal Doctrines & Maxims

Bail is the rule and jail is the exception.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that even if the allegations are accepted in full, no offence under Section 420 IPC is made out; they are willing to comply with any condition for bail and emphasize that the case involves a monetary transaction rather than proof of a fraudulent conspiracy. They highlight the need for a fair trial within the bail framework and request that appropriate conditions be imposed to safeguard witnesses and evidence, especially in the context of the COVID-19 pandemic.

Contentions of Respondents

The State contends that the complainant paid substantial sums as an advance to secure a large loan which did not materialize, causing a loss. It asserts the necessity of a robust investigation, citing potential risk to witnesses and the seriousness of the alleged offences; it urges the Court to constrain bail to strict conditions until the police complete investigation.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Re: Contagion of COVID-19 Virus In Prisons (Suo Motu Writ Petition(C) No.1 of 2020)	Suo Motu Writ Petition(C) No.1 of 2020	Positive	Cited to justify social distancing norms in prisons and as a basis for directions issued during the Covid-19 pandemic.
Chidambaram P. v. Directorate of Enforcement	2019 (16) SCALE 870	Positive	Cited for the core bail principle that bail is the rule, jail the exception, and the broad framework for fair trial.
W.P(C) No.9400 of 2020	W.P(C) No.9400 of 2020	Positive	Cited for the directions by this Court’s Full Bench on minimizing prison population and guiding ejusdem situational guidelines during the pandemic.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**B.A Nos.9243,9316& 9376 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.9243 OF 2019** **CRIME NO.736/2018 OF Harippad Police Station , Alappuzha** ## **PETITIONER/ACCUSED NO.3:** **VINEETH CHANDRAN, AGED 39 YEARS, MUZHUVELI HOUSE, ANARI P.O., PALLIPAD, HARIPAD, ALAPPUZHA.** **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** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **2 THE STATION HOUSE OFFICER, HARIPAD POLICE STATION, HARIPAD, ALAPPUZHA.** ## **SR.PP. D.CHANDRASENAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.07.2020, ALONG WITH Bail Appl..9316/2019, Bail Appl..9376/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A Nos.9243,9316& 9376 of 2019** **2** # **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.9316 OF 2019** **CRIME NO.736/2018 OF Harippad Police Station , Alappuzha** **PETITIONER/ACCUSED NO.1:** **SHARMILA KUMARI, AGED 38 YEARS W/O RAJEEV, KRISHNAKRIPA HOUSE, PILAPPUZHA MURI, HARIPPAD VILLAGE.** **BY ADVS. SRI.SUJESH MENON V.B. SRI.R.ANIL SRI.M.SUNILKUMAR SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) S.MAHESH BHANU LAKSHMI SANKAR S** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031. 2 THE STATION HOUSE OFFICER, HARIPAD POLICE STATION, HARIPAD, ALAPPUZHA, PIN - 690 514.** ## **BY SR.PP. D.CHANDRASENAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.07.2020, ALONG WITH Bail Appl..9243/2019, Bail Appl..9376/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A Nos.9243,9316& 9376 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.9376 OF 2019** **CRIME NO.736/2018 OF Harippad Police Station , Alappuzha** ## **PETITIONER/ACCUSED NO.2:** **RAJEEV T.P AGED 40 YEARS S/O. PAPPU, KRISHNAKRIPA HOUSE, PILAPPUZHA MURI, HARIPPAD VILLAGE.** **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** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. 2 THE STATION HOUSE OFFICER HARIPAD POLICE STATION, HARIPAD, ALAPPUZHA, PIN-690 514.** ## **BY SR.PP. D.CHANDRASENAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.07.2020, ALONG WITH Bail Appl..9243/2019, Bail Appl..9316/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A Nos.9243,9316& 9376 of 2019** **4** ## **O R D E R** **[ Bail Appl..9243/2019, Bail Appl..9316/2019, Bail Appl..9376/2019 ]** ## **Dated this the 13th day of July 2020** These Bail Applications are filed under Section 438 of Criminal Procedure Code. When these bail applications came up for consideration in December, 2019, this Court passed an order restraining the arrest of the petitioners. Even now these bail applications are pending. 2. The petitioners in these bail applications are the accused in Crime No.736/2018 of Haripad Police Station. Since the petitioners are the accused in the same crime, I am disposing these bail applications together. 3. The petitioner in B.A No.9316/2019 is the 1[st] accused in the above crime and the petitioners in B.A.Nos.9376/2019 and 9243/2019 are the 2[nd] and 3[rd] accused in the above case. The above case is registered alleging offences punishable under Sections 420, 465, 467 and 468 r/w 34 of IPC.. 4. The prosecution case is that the accused herein **B.A Nos.9243,9316& 9376 of 2019** **5** approached the defacto complainant and his friend Rasheed and gave an assurance to provide Rs.4 crores as loan to clear the liability of the defacto complainant outstanding in the South Indian Bank, Karthikappilly Branch. Thereafter, the accused obtained an amount of Rs.14,40,000/-, Rs.60,000/-, Rs.10,00,000/-, Rs.5,00,000/-, Rs.8,00,000/-, Rs.7,00,000/- and Rs.1,00,000/- on different occasions on the promise that the gold ornaments belonging to the partner of the 1[st] accused would be pledged for arranging the loan amount to the defacto complainant for which some advance is necessary. But the loan was not arranged. Thus the defacto complainant sustained a loss of Rs.46 lakhs in this case. This is the allegation against the petitioners. 5. Notice was ordered to the defacto complainant in B.A.No.9316/2019 and the defacto complainant appeared and filed an application to accept certain documents. According to the defacto complainant, the accused misused his relationship and misappropriated an amount of Rs.46 lakhs exploiting his financial need. According to the defacto complainant a suit was filed by the accused and that was dismissed subsequently. He produced the order passed by the civil court. It is also **B.A Nos.9243,9316& 9376 of 2019** **6** submitted by the defacto complainant that there is threat to his life from the petitioners and the other accused. He also produced Annexure R3(c) FIR registered against the 3[rd] accused under Sections 341, 323, 294(b) and 506 IPC. He also produced Annexure R3(d) to show that he sustained injuries. 6. The learned counsel for the petitioners submitted that even if the entire allegations are accepted, no offence alleged in this case is made out. The counsel submitted that the petitioners are ready to abide by any condition, if this Court is grant bail to them. 7. The learned Public Prosecutor submitted that, for arranging a loan, the defacto complainant paid an amount of Rs.46 lakhs to the accused as an advance and subsequently, the loan is not arranged and the advance amount is not paid. This is the allegation against the petitioners. 8. After hearing both sides, I think this is a case in which the allegation is connected with some monetary transaction. The admitted prosecution case is that some amount is paid by the defacto complainant to the accused for arranging a huge amount as a loan to clear his liabilities with a bank. After getting the amount, the accused has not arranged **B.A Nos.9243,9316& 9376 of 2019** **7** the loan. It is also the case of the defacto complainant that the amount collected by the petitioners is not repaid. In such a situation, whether the offence under Section 420 IPC is made out is a matter to be investigated by the police. Taking note of the contention of the defacto complainant that during the pendency of this crimet one of the accused attacked the defacto complainant and an FIR was registered, these bail applications can be allowed only on stringent conditions. 9. 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. 10. 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 **B.A Nos.9243,9316& 9376 of 2019** **8** and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 11. 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 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 **B.A Nos.9243,9316& 9376 of 2019** **9** social distancing in the wake of Covid 19 pandemic. 5. The petitioners shall appear before the investigating officer on all Mondays and Fridays at 10 am. till final report is filed. 6. The petitioners shall not commit any similar offence. 7. The petitioners shall not enter the jurisdiction limit of Haripad Police Station till the final report is filed in Crime No.736/2018. I make it clear that the petitioners can enter the jurisdiction limit of the Police Station for the purpose of appearing before the investigating officer on all Mondays and Fridays. 8. The petitioners shall not commit similar offences. 9. 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**