High Court of KeralaSingle Judge2020-11-11The bail application is allowed for the survivi...

Biby Sabitha and Sakkeer P.A. v. State of Kerala and Sindhu P.S

Case / Petition Number:BA.No.8426/2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V.KUNHIKRISHNAN
Judgment Date: 2020-11-11
Court Decision / Holding: Bail application allowed as far as the surviving petitioner is concerned with conditions: (1) appearance before IO within 10 days; (2) bond Rs.50,000 with two solvent sureties; (3) appearance as required and cooperation with investigation; (4) no leaving India without court permission; (5) no commission of similar offences; (6) adherence to COVID-19 guidelines; (7) if settlement terms are violated, the complainant may take legal steps; (8) three months to comply with settlement; (9) if non-compliance, complainant may approach the lower court to cancel the bail; (10) bail may be cancelled if terms are violated; the 2nd petitioner’s bail order is closed.
Final Disposition: The bail application is allowed for the surviving petitioner with specified conditions; the 2nd petitioner’s bail was previously closed; the matter is to be resolved by compliance with the mediation settlement within three months, with consequences for non-compliance including possible arrest or cancellation of bail.

Parties to the Case

Appellants / Petitioners

Biby Sabitha
Sakkeer P.A.

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam-682 031
Addl. Respondent 2: Sindhu P.S.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. B Premnath
• Sri. Sarath M S

Counsels for Respondents

• Sri. Shibu Varghese
• Sri. Renjith.T.R., PP

Case Synopsis & Summary

This is a bail application under section 438 CrPC filed in the High Court of Kerala at Ernakulam by Biby Sabitha and Sakkeer P.A. arising from Crime No. 719/2019 of Chengamanad Police Station. The petitioners faced charges including sections 406, 420, 468 and 471 read with 34 IPC, along with offences under sections 67 and 67A IT Act. The prosecution alleged that the petitioners, with common intention, induced the defacto complainant to invest in a spice trading venture with promises of profit shares and employment for her son, resulting in receipt of money and, later, refusal to repay or share profits. The court referred the matter to mediation, yielding a settlement where the petitioners agreed to pay Rs. 20,00,000 to the addl. respondent Sindhu P.S. The settlement also imposed conditions, including depositing funds in bank accounts, and an undertaking not to alienate property without court permission, among others, and contemplated quashing petitions on compliance. During proceedings, the 1st petitioner was said to be no more, prompting the court to recall prior orders and consider the 2nd petitioner’s bail; subsequently the 2nd petitioner was also said to be no more. On 11.11.2020, the court allowed the bail application as far as the surviving petitioner was concerned, subject to stringent conditions (appearance before IO within 10 days, bond of Rs.50,000 with two sureties, non‑departure from India, compliance with settlement within three months, adherence to Covid‑19 guidelines). If terms are violated, the defacto complainant can take steps; the order also directs how to proceed if a failure occurs. The 2nd petitioner’s bail application was closed.

Provisions of Law Cited

Section 438 of the CrPCSections 406, 420, 468 and 471 read with 34 IPCSections 67 and 67A of the Information Technology Act

Legal Doctrines & Maxims

Bail is the rule and jail is the exception

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contended for grant of bail under Section 438 in light of the settlement arrived at through mediation, stressing the need to ensure fair trial and avoid unnecessary detention. They argued for time-bound compliance with the settlement and placed reliance on directives issued in the COVID-19 context to minimize prison occupancy, arguing that release with conditions would serve justice while safeguarding the complainant’s interests.

Contentions of Respondents

The respondents urged caution against indefinite detention and emphasized adherence to the terms of the mediation settlement. They highlighted the ongoing criminal proceedings and potential risk to the complainant if bail was granted without ensuring compliance with the settlement and conditions. They also relied on the social distancing and other COVID-19 guidelines to justify keeping certain restrictions in custody or requiring strict compliance with the settlement terms.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Re: Contagion of COVID-19 Virus In Prisons case	Suo Motu Writ Petition(C) No.1 of 2020	Positive	Cited to support social-distancing and pandemic‑related guidelines affecting prison procedures and bail considerations.
W.P(C)No.9400 of 2020	W.P(C)No.9400 of 2020	Positive	Cited for directions issued by the Full Bench on managing inmates during COVID‑19 and related procedural directions.
Chidambaram P v Directorate of Enforcement	2019 (16) SCALE 870	Positive	Cited for the principle that bail is the rule and jail is the exception.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**BA.No.8426/2019** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942 Bail Appl..No.8426 OF 2019** **CRIME NO.719/2019 OF Chengamanad Police Station , Ernakulam** ## **PETITIONERS:** |**1**|**BIBY SABITHA**| |---|---| ||**AGED 44 YEARS,**| ||**W/O.SAKKEER.P.A., ALAMUTTATHU HOUSE,**| ||**U.C.COLLEGE P.O., ALUVA, ERNAKULAM-683 102.**| |**2**|**SAKKEER.P.A.,**| ||**AGED 51 YEARS,**| ||**S/O.ABOOBACKER HAJI, ALAMUTTATHU HOUSE,**| ||**U.C.COLLEGE P.O., ALUVA, ERNAKULAM-683 102.**| ||**BY ADVS.**| ||**SRI.B PREMNATH**| ||**SRI. SARATH M S**| ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 ADDL. R2: SINDHU P.S AGED 47 YEARS,PERIKKATTI HOUSE, KARAKKATTUKUNNU, MEKKADU P.O. ANGAMALY ERNAKULAM 683 589 IS IMPLEADED AS ADDL. R2 AS PER ORDER DATED 18/12/19 IN CRL MA 1/19 IN BA 8426/19 R2 BY ADV. SRI.SHIBU VARGHESE SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BA.No.8426/2019** **2** ## **O R D E R** ## **Dated this the 11th day of November 2020** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioners are the accused Nos.1 and 2 in Crime No.719/2019 of Chengamanadu Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 406, 420, 468 and 471 r/w 34 IPC. The offence under Sections 67 and 67(A) of the Information Technology Act is also alleged. 3. The prosecution case is that the accused persons with the common intention to obtain unlawful gain by cheating the defacto complainant, in December, 2014, made her believe that if she invest amounts in spice trading business, she will be paid the share of profit and also induced her by promising that her son and his friend will be given employment in Bahrin and pursuant to such acts, the accused persons have received amount from the defacto complainant during 23.4.2019 to 3.8.2019 and thereafter the accused persons have refused to either pay the profit share as promised or make her son a **BA.No.8426/2019** 3 partner in the business. Hence it is alleged that the petitioners committed the above said offences. 4. When this bail application came up for consideration, this Court sent this matter for mediation. As per letter dated 29.1.2020, the Nodal Officer, Ernakulam Mediation Centre informed that the matter is settled. The mediation report is also produced by the Nodal Officer. The relevant portion of the mediation settlement is extracted hereunder. 1. The petitioners and Addl.2[nd] respondent has agreed to settle their dispute for an amount of Rs.20,00,000/(Rupees Twenty lakhs only). 2. Petitioner Biby Sabitha and Sakkeer have agreed to give above said amount of Rs.20,00,000/- (Rupees Twenty lakhs only) to the additional 2[nd] respondent Sindhu P.S on or before 21.07.2020 by way of Account payment. 3. In case of default of payment as agreed above, there will be a charge in property of the 2[nd] petitioner (In Survey No.289/1-3 in Karumaloor Village in Paravur Taluk obtained by the 2[nd] petitioner Sakkeer by document No. and owned and possessed by the 2[nd] petitioner himself) for realisation of the said amount with an interest at the rate of 12% per annum from the date of default. 4. The petitioner will not make any alienation or create any charge or do any transaction pertaining to the above mentioned property without prior permission from the Hon'ble Court. 5. The petitioners have agreed to deposit Rs.7 lakhs in the account of Smt.V.S.Anila with Federal Bank, Athani Branch in Account No.15790100074151, IFSC CodeFDRL0001579 and Rs.3 lakhs into the account of Sri.V.S.Amal Dev with Federal Bank, Athani Branch in Account No.15790100077824, IFSC CodeFDRL0001579 and Rs.10 lakhs into the account of Sri.Ajith Kumar Raveendran with Canara Bank, Varkala **BA.No.8426/2019** 4 Branch in Account No.1988104010866, IFSC CodeCNRB0001988, which is Rs.20,00,000/- mentioned in the paragraph No.2 6. The Addl. 2[nd] Respondent will not use the two cheques of Bibi Sabitha (Cheque No.108313 and 108306) as per the account No.17490100007495 of Federal Bank at Karumaloor Branch which was entrusted with the Addl.2[nd] Respondent or through anybody else for any purpose. 7. The 2[nd] Addl. Respondent has agreed to do all necessary helps including filing of no objection in the petition which will be filed by the petitioners and their daughter, she is 3[rd] accused in the above crime No.719/2019 of Chengamanad Police Station at Ernakulam District for quashing the same before the Hon'ble High Court of Kerala on compliance of the terms and conditions of the settlement agreement by the petitioners.” 5. When this bail application came up for consideration on 04.08.2020, the counsel for the petitioners submitted that, the 1[st] petitioner is no more. Therefore, recording the same the bail application was allowed as far as the 2[nd] petitioner is concerned. Now, that bail Order was recalled by me, as per my Order dated 10.11.2020. 6. Now, the learned counsel for the petitioners submitted that the 2[nd] petitioner is no more. The 1[st] petitioner wants some more time to settle the matter. This bail application is pending before this Court from 15.11.2019 onwards. There was an interim order also in favour of the petitioners restraining the police from arresting them. This bail application cannot be kept pending like this. If any of the **BA.No.8426/2019** 5 conditions in the settlement mentioned above are violated by the 1[st] petitioner as per the terms of the agreement, the defacto complainant can take appropriate steps in accordance to law. The learned counsel for the 1[st] petitioner submitted that he will comply the directions in the settlement within three months. Therefore this bail application is allowed as far as the 1[st] petitioner is concerned. Of course, the counsel for the defacto complainant objected that, no further time may be granted. This Court may at the maximum may kindly grant time upto 30.11.2020. 7. 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. 8. 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 **BA.No.8426/2019** 6 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. 9. 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 1[st] petitioner 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 1[st] 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 1[st] petitioner shall appear before the Investigating Officer for interrogation as and when required. The 1[st] 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 1[st] petitioner shall not leave India without permission of the jurisdictional Court. **BA.No.8426/2019** 7 5. The 1[st] 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 1[st] 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. 7. If the 1[st] petitioner violated the terms of settlement, the defacto complainant can take appropriate steps in accordance to law. 8. Three months' time is granted to the 1[st] petitioner to comply the directions in the settlement. 9. If the 1[st] petitioner refused to comply the terms of settlement within three months, the defacto complainant can proceed in accordance to law. The defacto complainant can also approach the lower court to cancel this bail application, even though this bail application is allowed by this Court. 10. If any of the above conditions are violated by the 1[st] petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. **BA.No.8426/2019** 8 The bail application of the 2[nd] petitioner is closed. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** NB