CRL.M.C. Nos. 2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013 (High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **FRIDAY, THE 28TH DAY OF JUNE 2013/7TH ASHADHA, 193** ## **Crl.MC.No. 2053 of 2013 (A)** **--------------------------------------[CRIME NO.745/2012 OF SOUTH POLICE STATION, ERNAKULAM]** **...............** **PETITIONERS/ACCUSED 3 & 4:** **--------------------------------------------** **1. ASHISH ARORA, AGED 24 YEARS, S/O.JANAK RAJ ARORA, 30 C.BRS NAGAR, LUDHIANA DISTRICT, PUNJAB STATE.** **2. SUMIT KUMAR ARORA, AGED 28 YEARS, S/O.SATISH KUMAR ARORA, 89(A), SARABHA NAGAR, LUDHIANA DISTRICT, PUNJAB STATE.** **BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, ADV.SRI.RAJIT.** **RESPONDENT:** **----------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-06-2013, ALONG WITH CRL.M.C.NO. 2057/2013 AND CONNECTED CASES, THE COURT ON 28-06-2013 PASSED THE FOLLOWING:** **Prv.** ## **CRL.M.C. NO.2053/2013-A:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A: COPY OF THE BAIL ORDER PASSED BY THE C.J.M, ERNAKULAM DTD. 15/12/2012 IN CRIME NO.745/2012 OF THE C.J.M, ERNAKULAM. ANNEXURE B: COPY OF THE ORDER DTD. 26/04/2013 IN W.P.(CRL.) NO.65/2013 OF THE HON'BLE SUPREME COURT. ANNEXURE C: COPY OF THE SALE DEED AS PER DOCUMENT NO.8922/07 DT. 29/08/2007 REGISTERED WITH SUB REGISTRAR OFFICE, LUDHIANA EAST ALONG WITH ITS ENGLISH TRANSLATION. ANNEXURE D: COPY OF THE REPORT OF THE TAHASILDAR ALONG WITH ITS ENGLISH TRANSLATION (DOCUMENT NO.8922/07).** **ANNEXURE E: COPY OF THE SALE DEED AS PER DOCUMENT NO.8921/07 DT. 29/08/2007 REGISTERED WITH SUB REGISTRAR OFFICE, LUDHIANA EAST ALONG WITH ITS ENGLISH TRANSLATION. ANNEXURE F: COPY OF THE REPORT OF THE TAHASILDAR ALONG WITH ITS ENGLISH TRANSLATION (DOCUMENT NO.8921/07).** ## **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **V.K.MOHANAN, J.** ## **-------------------------------** **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013. -------------------------------** ## **Dated this the 28[th] day of June, 2013.** ## **O R D E R** As the parties to the above Crl.M.Cs. and the subject matters are one and the same and particularly when the reliefs sought are identical and the question of law and the facts are also identical, these M.Cs. are heard together and being disposed by this common order. 2. The petitioners are accused in various crime cases pending in various police stations in Ernakulam District and in the Southern districts of this State. The cases against the petitioner along with other accused are in crime stage. In almost all the crimes, they are arrayed as accused nos.3 and 4. The allegation raised against the petitioners in each case is that, they along with other 2 ## **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** accused have cheated the Federal Bank and thereby caused substantial loss to the de facto complainant and thus committed the offences punishable under sections 420 r/w 34 of IPC and Section 66(D) of the Information Technology Act. On the basis of the above allegation and on the basis of the information furnished by the concerned de facto complainant, crime cases were registered in various police stations for the said offences. Consequently, the petitioners were arrested. 3. As the investigation could not be completed within the statutory period, the petitioners were granted default bail as per the order impugned in this M.C., ie., Annexure A. According to the petitioners, while granting such default bail, the court concerned imposed certain conditions, which are practically and physically impossible to comply with, for various reasons. Thus, aggrieved by the bail conditions, the petitioners who are accused in Crime 3 **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** Nos.745/2012 of South Police Station, Ernakulam, 1314/2012 of Central Police Station, Ernakulam, 779/2012 of Kadavanthra, Ernakulam, 1315/2012 of Central Police Station, Ernakulam, 1321/2012 of Central Police Station, Ernakulam, 978/2012 of Attingal, Thiruvananthapuram, 1228/2012 of Attingal, Thiruvananthapuram, 746/2012 of South Police Station, Ernakulam, 1029/2012 of South Police Station, Ernakulam, 956/2012 of East Police Station, Kollam, 745/2012 of Peroorkada, Thiruvananthapuram, 1313/2012 of Central Police Station, Ernakulam, 784/2012 of Cherthala, Alappuzha, 816/2012 of Balaramapuram, Thiruvananthapuram, and 686/2012 of Mangalapuram, Thiruvananthapuram, respectively filed the above M.Cs. under section 482 of Cr.P.C. with prayer to modify the bail conditions. 4. Heard the learned senior counsel for the petitioners in all the above petitions and I have also heard 4 ## **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** the learned Public Prosecutor for the State. 5. Learned senior counsel, strenuously submitted that the petitioners are not ordinary residents of the State of Kerala and they belong to State of Punjab. According to the learned counsel, they came to Kerala as tourists and they were falsely implicated in the above criminal cases. It is the further submission of the learned counsel that, though the courts have granted default bail, stringent, unpracticable and impossible conditions are incorporated and the petitioners are not in a position to enjoy the fruits of such an order. By imposing such conditions, which are detrimental to the interest of the petitioners, the courts below itself thus denied the fruits of such an order. Learned senior counsel for the petitioners vehemently submitted that the condition imposed on the petitioners to produce solvent sureties from Kerala or from the territorial jurisdiction of the trial court, is practically unworkable, 5 ## **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** since it is impossible for the petitioners to find out such sureties, as they have no such contacts. It is also the submission of the counsel that as the petitioners are implicated in several cases, they are unable to report before the Investigating Officer in each case as directed in each impugned order, as per the schedule fixed therein. Therefore, the counsel submits that they are prepared to report before any superior Police Officer as this Court may decide and fix. So, according to the learned counsel, the conditions with respect to the time and schedule and the Police Officer in front of whom they have to report etc., fixed by the courts below, cannot be complied, even if the petitioners are ready for the same on the ground that several crime cases are pending, spread over various Police Stations in Ernakulam district as well as in Southern districts. 6. During the pendency of the above M.Cs., 6 ## **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** Crl.M.A.No.4843/13 is filed in Crl.M.C.No.2053 of 2013, which is a petition filed under section 482 of Cr.P.C., with a prayer for accepting the affidavit and documents produced along with the petition. The affidavit in support of the above petition is sworn in by one Ashwani Kumar, on behalf of himself, whereby he stated that he is the brother of one Mr.Janak Raj Arora and Mr.Satish Kumar Arora and also stated that the petitioners herein are his nephew. According to the deponent, himself and his brother Mr.Satish Kumar Arora are decided to stand as sureties for the petitioners herein. Along with the affidavit, they have produced as Annexure C which is the copy of the sale deed with respect to his property claimed to have purchased as per the document dated 29.8.2007 and the said property has been valued at `20,00,000/- as per the Annexure D report. It is also stated that his brother Mr.Satish Kumar Arora is also holding the property as per the registered 7 ## **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** deed dated 29.8.2007. Annexure E is the copy of the sale deed and Annexure F is the report of the Tahasildar showing its value as `17 lakhs. Both the deponent and his brother are ready to stand as sureties for the petitioners/ accused. It is also stated that they are ready to deposit the original of Annexures C to F documents marked through the above affidavit. It has also undertaken by the deponent that as the petitioners have no current residence address in the State of Kerala, but they undertake that after their release, they will be residing in Ernakulam and will also furnish the particulars of their residence at Ernakulam. 7. On the basis of the above affidavit filed by the close relatives of the petitioners, the learned counsel for the petitioners submitted that accepting the affidavit now filed by the relatives of the petitioners before this Court and upon their undertakings and the documents, the bail conditions imposed by the courts below may be modified. 8 ## **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** 8. On the other hand, learned Public Prosecutor submitted that the petitioners are hailing from Punjab and they have no properties in the State of Kerala and therefore in case they abscond, on their release on bail, the State will be left with no remedies to secure the presence of the petitioners/accused and to proceed against them in the event of convicting them after the trial. 9. I have carefully considered the submissions made by the learned Senior counsel for the petitioners and the learned Public Prosecutor. I have also perused the orders impugned and the order of the Apex Court as well as the documents produced by the petitioners along with Crl.M.A.No.4843/13. 10. From the facts stated above it can be seen that, if the allegations are true, the petitioners and other accused are included in serious offences and committed the alleged offence by adopting new technical modus operandi and 9 ## **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** thereby cheated the de facto complainant, by which they have obtained illegal pecuniary advantage, resulting loss to the de facto complainant in various crimes. However, the fact which is beyond dispute is that though they were arrested, the police could not complete the investigation within the statutory time limit and they failed to file report as contemplated under section 173(2) of Cr.P.C. within the statutory period and resultantly, the petitioners were ordered to be released on bail. But at the same time, when the courts below issued order releasing the petitioners on bail, certain conditions were imposed. Among such conditions, one condition is to the effect that the petitioners should produce local sureties and they were also directed to report before the concerned Investigating Officer as per the schedule fixed in each order, which are under challenge in the above M.Cs. 11. It is pertinent to note that now the petitioners are 10 ## **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** ordered to be released on bail. Admittedly, they are hailing from the State of Punjab. According to them, they have no local residence address and no relatives or friends in the State of Kerala to bring as sureties. In such circumstances, according to me, the condition directing them to produce local sureties is unworkable and it is impossible for them to comply with such condition in the given facts and circumstances of the cases and therefore the same requires modification. 12. It is equally important to note that the very same petitioners are involved in various crimes registered in various police stations, spread over in Ernakulam, Kollam, Alappuzha and Thiruvananthapuram districts. So, they may not be in a position to comply with the conditions of reporting before the Police Officer concerned, as per the schedule fixed and allotted by the courts below. So, for proper compliance of such conditions and to give effect for 11 ## **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** it, adequate modifications are absolutely necessary. 13. Thus, as the above two conditions are liable to be modified, according to me, appropriate conditions are to be substituted, so as to secure the presence of the petitioners and to make available them for trial and thereby save the interest of the prosecution. In the result, all the above Crl.M.Cs. are disposed of making the following modifications and directions as noted against each M.C. : **Crl.M.C.No.2053 of 2013 - against The condition to report before order dtd.15.12.12 of Addl.CJM court the Investigating Officer on (E.O.), Ernakulam, in C.M.P.No.2005 every Monday between 10 a.m. of 2012 in Crime No.745/2012 of : and 1 p.m. till the final report is E.T. South Police Station, Ernakulam. filed, is deleted.** **Crl.M.C.No.2057 of 2013 - against** **The order requiring one of the** **order dtd.9.10.2012 of CJM court, surety to be a permanent resident Ernakulam, in Crime No.1314/2012 of : of the State of Kerala, Central Police Station, Ernakulam. is deleted.** **Crl.M.C.No.2058 of 2013 - against** **- against The order requiring one of the surety to be a permanent along with BT receipt and attested copies of sale deed, is deleted.** **order dtd.9.10.2012 of CJM court, the surety to be a permanent Ernakulam, in Crime No.779/2012 of : resident of the State of Kerala Kadavanthra Police station, along with BT receipt and** **Ernakulam.** 12 **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** **--------------------------------------------------------------------------------------------------------** **Crl.M.C.No.2059 of 2013 - against : The order requiring one of the order dtd.9.10.2012 of CJM court, surety to be a permanent Ernakulam, in Crime No.1315/2012 resident of the State of Kerala, of Central Police Station, is deleted. Ernakulam.** **Crl.M.C.No.2064 of 2013 - against : The order requiring one of order dtd.9.10.2012 of CJM court, the surety to be a permanent Ernakulam, in Crime No.1321/2012 resident of the State of Kerala, of Central Police Station, is deleted. Ernakulam.** **Crl.M.C.No.2086 of 2013 - against : The condition stipulating the order dtd.29.11.2012 of JFCM court-1, sureties to be resided within Attingal, in C.M.P.No.8444/2012 the territorial jurisdiction of the in Crime No.978/2012 of Attingal JFCM-1, Attingal, is deleted. Police Station, Thiruvananthapuram.** **Crl.M.C.No.2087 of 2013 - against : The condition stipulating the order dtd.29.11.2012 of JFCM court-1, sureties to be resided within Attingal, in C.M.P.No.8447/2012 the territorial jurisdiction of the in Crime No.1228/2012 of Attingal JFCM-1, Attingal, is deleted. Police Station, Thiruvananthapuram.** **Crl.M.C.No.2088 of 2013 - against : The condition requiring the order dtd.15.12.2012 of Addl. CJM petitioners to report before (E.O.)court, Ernakulam, in C.M.P.No. the Investigating Officer on all 2006 of 2012 in Crime No.746/2012 of Mondays between 10 a.m. and E.T.South Police Station, Ernakulam. 1 p.m. till the final report is filed, is deleted.** **Crl.M.C.No.2089 of 2013 - against : The condition requiring the order dtd.15.12.2012 of Addl. CJM petitioners to report before (E.O.) court, Ernakulam, in C.M.P.No. the Investigating Officer on all 2007 of 2012 in Crime No.1029/2012 Mondays between 10 a.m. and of E.T.South Police Station, 1 p.m. till the final report is filed, Ernakulam. is deleted.** **: The condition requiring the petitioners to report before 1 p.m. till the final report is filed, is deleted.** 13 **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** **--------------------------------------------------------------------------------------------------------** **Crl.M.C.No.2090 of 2013 - against : The condition requiring the order dtd.30.11.2012 of CJM court, sureties to be local sureties Kollam, in C.M.P.No.7793/2012 in and the condition to appear Crime No.956/2012 of before the Investigating Officer East Police Station, Kollam. for interrogation on all Mondays and Fridays between 9 a.m. and 11 a.m. until further orders, is deleted.** **Crl.M.C.No.2112 of 2013 - against : The condition requiring the order dtd.3.12.2012 of JFCM court-2, sureties to have landed properties Thiruvananthapuram, in C.M.P.No. in Kerala, is deleted. 4939 of 2012 in Crime No.745/2012 of Peroorkada Police station, Thiruvananthapuram.** **Crl.M.C.No.2113 of 2013 - against : The conditions requiring one of order dtd.3.12.2012 of CJM court, the sureties to be a permanent Ernakulam, in Crime No.1313/2012 resident of the State of Kerala of Central Police Station, Ernakulam. and also requiring the petitioners to report before the Investigating Officer on all Mondays between 10 a.m. and 11 a.m. for a period of 2 months until filing of charge sheet whichever is earlier, are deleted.** |**Crl.M.C.No.2114 of 2013**<br>|**- against**|**: The condition requiring the**| |---|---|---| |**order dtd.4.12.2012 of JFCM court-1,**||**sureties to be from the State of**| |**Cherthala, in C.M.P.No.10598 of 2012 Kerala and also the condition**||| |**in Crime No.784/2012 of**||**requiring the petitioners to**| |**Cherthala Police Station,**||**report before the Investigating**| |**Alappuzha.**||**Officer on all Mondays at 10 a.m.**| |||**for 2 months, are deleted.**| 14 **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** **--------------------------------------------------------------------------------------------------------** **Crl.M.C.No.2115 of 2013 - against : The condition requiring the order dtd.16.1.2013 of Sessions petitioners to report before the Judge, Thiruvananthapuram, Investigating Officer on in Crime No.816/2012 of every alternate Mondays Balaramapuram, between 9 a.m. to 11 a.m. for 2 Thiruvananthapuram. months and thereafter, as and** **when required by the Investigating Officer in writing to do so, is deleted.** **Crl.M.C.No.2116 of 2013 - against : The condition requiring that the order dtd.28.11.2012 of JFCM court-II, sureties must be residents of Attingal, in C.M.P.No.5481 of 2012 State of Kerala, is deleted. in Crime No.686/2012 of Mangalapuram, Thiruvananthapuram.** 12. While the conditions are deleted as indicated above, in modification of the bail conditions stipulated in the orders impugned in these M.Cs., the petitioners are directed to comply with the conditions therein, other than the deleted, as indicated above, the petitioners are also directed to comply with the following additional directions and conditions as well. i. The petitioners shall produce the original of the certified copies of this order in the court 15 ## **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** of Additional Chief Judicial Magistrate (E.O.), Ernakulam, and they are also permitted to produce the photostat copy of the certified copies of this order before the other courts concerned. ii. The petitioners while executing the bond, shall produce sureties namely, Mr.Ashwani Kumar, aged 46 years, S/o.Late Ram Lal, No.30 C, B.R.S.Nagar, Block C, Ward No.43, Sunet Village, Ludhiana West Taluk, Ludhiana District, Punjab State, and Mr.Satish Kumar Arora, who shall be duly identified by the deponent-Ashwani Kumar and for identification, they shall produce their Aadhaar cards/identity cards issued by the Election Commission, which can be returned after verification. iii. Each of the sureties shall file separate affidavits before the courts below concerned. 16 **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** iv. Each of the sureties shall produce the original of the title deeds of their properties, along with its English translation, in the court of Chief Judicial Magistrate, Ernakulam, in Crime No.1314/2012 of Central police station, Ernakulam, and the valuation certificates of each property, which shall be duly valued by the Tahasildar of the Taluk in which the properties lie and shall produce the Encumbrance and Possession Certificates, obtained from the concerned Registration Department as well as the Revenue Department of the State of Punjab. - v. The sureties are directed to get counter signed the original of all the documents, indicated in clause no.(iv), by the District collector of the Revenue Districts, where the properties lie. - vi. The petitioners and their sureties are permitted to produce Photostat copies of those documents mentioned in clause (iv), counter 17 ## **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** signed as indicated in clause (v), which shall be duly notarized by a Notary public duly appointed by the State of Kerala for the districts or Taluks concerned, who have jurisdiction over the area where the concerned courts situate, other than the court of Chief Judicial Magistrate-Ernakulam, and in cases, other than Crime No.1314/2012 of Central Police Station, Ernakulam, pending in the court of CJM, Ernakulam, the petitioners can produce notarized copies of documents as indicated in clause (vi). - vii. The petitioners shall reside at Ernakulam within the territorial jurisdiction of City Police commissioner, Cochin - 16, and they shall inform their respective addresses to the Assistant City Police Commissioner, Ernakulam. - viii. They shall report before the Assistant Police Commissioner, Ernakulam, on all Mondays between 10.30 a.m. and 11.30 a.m. till filing a final report in the respective files. 18 **Crl.M.C.Nos.2053, 2057, 2058, 2059, 2064, 2086, 2087, 2088, 2089, 2090, 2112, 2113, 2114, 2115 and 2116 of 2013** Accordingly, the above Crl.M.Cs. are disposed of subject to the above referred modifications and the additional conditions now imposed. ami/ Sd/- **V.K.MOHANAN, Judge** //True copy// P.A. to Judge