Basheer v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF APRIL 2024 / 5TH VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 3073 OF 2024 ``` ``` CRIME NO.55/2024 OF KURAVILANGADU POLICE STATION, KOTTAYAM ``` ``` AGAINST THE ORDER DATED 04.04.2024 IN CRMP NO.941 OF 2024 OF DISTRICT COURT & SESSIONS COURT,KOTTAYAM ``` ``` PETITIONER: ``` ``` BASHEER AGED 48 YEARS S/O. ABDUL KHADER, KALIKKANAKATH HOUSE, THANOOR VILLAGE, THIROOR, MALAPPURAM DISTRICT, PIN – 676302 ``` ``` BY ADV C.K.SREEJITH ``` ``` RESPONDENT: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` OTHER PRESENT: ``` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3073/2024_ _-:2:-_ _Dated this the 25[th] 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 accused in Crime No.55/2024 of the Kuruvilangad Police Station, Kottayam, registered against the accused for allegedly committing the offences punishable under Sections 406, 420, 471 of the Indian Penal Code, 1860, and Sections 66C & 66D read with Section 43 of the Information Technology Act, 2000. The petitioner was arrested on 11.03.2024. 2. The crux of the prosecution allegation is that: the accused, with an intention to cheat and cause unlawful loss to the de-facto complainant and unlawful gain for himself, made the de-facto complainant believe that he could earn money by doing work on commission basis through the Telegram platform in _B.A.No.3073/2024_ _-:3:-_ the name of Rhino Car Hire Company. Consequently, during the period from 02.01.2024 to 09.01.2024, the de-facto complainant paid the accused Rs.17,58,658/-. However, the accused did not pay any profit to the de-facto complainant and failed to return his capital. Thus, the accused has committed the above offences. 3. Heard; Sri. C.K. Sreejith, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of Annexure-A1 First Information Report[FIR] would substantiate that the offences will not be attracted. In any given case, the petitioner has been in judicial custody for the last 45 days, the investigation in the case is complete, and recovery has been effected. Therefore, the petitioner’s _B.A.No.3073/2024_ _-:4:-_ further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that, it has to be ascertained as to whether the petitioner is involved in other cases. If the petitioner is let off on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, he induced the de-facto complainant to pay him an amount of Rs.17,58,658/- on the assurance of giving him a good profit. However, the accused cheated the de-facto complainant by not giving any profit and failing to return the capital. The fact remains that, the accused has been in judicial custody for the last 45 days, the investigation in the case is complete, and recovery has been effected. _B.A.No.3073/2024_ _-:5:-_ 7. It is well settled in **Hussainara Khatoon** **(I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], that merely because a person has an antecedent, the same shall not be treated as a ground to deny bail to that person. 8. 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. 9. In **Dataram Singh v. State of U.P** . [(2018) 3 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 _B.A.No.3073/2024_ _-:6:-_ on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 10. The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. 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, particularly taking into consideration the fact that the petitioner has been in judicial custody for the last 45 days, the investigation in the case is complete, and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent _B.A.No.3073/2024_ _-:7:-_ 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 laid. 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 Officer or tamper with the evidence in any manner, whatsoever; (iii)The petitioner shall not commit any offence while _B.A.No.3073/2024_ ## _-:8:-_ 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 necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down _B.A.No.3073/2024_ _-:9:-_ by the Hon'ble Supreme Court in **Sushila Aggarwal v. State(NCT of Delhi) and Anr.** [2020 (1) KHC 663]. Sd/- ## **C.S.DIAS,JUDGE** DST/25.04.24 //True copy// P.A. To Judge