Chandrasekharan Nair v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946 BAIL APPL. NO. 3664 OF 2024 ``` ``` CRIME NO.490/2024 OF PUNALUR POLICE STATION, KOLLAM PETITIONER/ACCUSED: ``` ``` CHANDRASEKHARAN NAIR AGED 69 YEARS S/O CHELLAPPAN NAIR, 'ARUNA NIVAS', THOLIKODE, KARAVALOOR VILLAGE, PUNALUR, KOLLAM, PIN - 691305 ``` ``` BY ADVS. S.MUHAMMED HANEEFF M.H.ASIF ALI ASHIK ALI M.H. ``` ## **`RESPONDENT:`** ``` STATE OF KERALA THROUGH .STATION HOUSE OFFICER, PUNALUR POLICE STATION, KOLLAM REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.3664 of 2024** ``` 2 ``` ## **Dated this the 20[th] day of May, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.490/2024 of the Punalur Police Station, Kollam, registered against him for allegedly committing the offences punishable under Sections 409 & 420 of the Indian Penal Code. The petitioner was arrested on 05.04.2024. 2. The crux of the prosecution case is that; the accused with an intention to cheat and make unlawful enrichment, misrepresented to the de facto complainant that he would give interest at the rate of Rs.1.5/- for every Rs.100/- and received Rs.15,00,000/- as fixed deposit. However, the accused failed to pay any interest or return the capital. Thus, the accused has committed **B.A. No.3664 of 2024** ``` 3 ``` the above offences. 3. Heard; Sri.S.Muhammed Haneeff, learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner did not receive amount from the de facto any complainant with an intention to cheat or defraud him. It is only due to certain financial difficulties that he could not the amount. The fact remains that the repay petitioner has been in judicial custody for the last 47 days, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. ``` 4 ``` ## **B.A. No.3664 of 2024** 5. The learned Public Prosecutor opposed the application. She submitted that investigation in the case is in progress. She also stated that the petitioner is an accused in Crime No.579/2024 of the very same police station for committing similar offences. If the petitioner is released on bail, there is a likelihood of him intimidating the witnesses and tampering with evidence. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, he fraudulently received money from the de facto complainant by offering high interest rate. But, the petitioner failed to pay any interest or return the capital. The fact remains that the petitioner has been in judicial custody for the last 47 days, the investigation in the case is complete and recovery has been effected. Therefore, I am of the definite view that the petitioner’s further detention is unnecessary. ``` 5 ``` ## **B.A. No.3664 of 2024** 7. 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. 8. 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 on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. - 9.In **State of Kerala v. Raneef** , [(2011) 1 SCC ``` 6 ``` ## **B.A. No.3664 of 2024** 784], the Honourable Supreme Court has declared that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. 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 47 days, the investigation in ``` 7 ``` ## **B.A. No.3664 of 2024** 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 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 ``` 8 ``` ## **B.A. No.3664 of 2024** 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 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 ``` 9 ``` ## **B.A. No.3664 of 2024** 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 by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].** **SD/-** rmm/20/5/2024 **C.S.DIAS, JUDGE**