Dhanush Mohan V M, Muhamed Ismail, Deepak Mohan V.M, Nazar, Fasalu Rahman, Jaseela Muhamed v. State of Kerala and Sub-Inspector of Police, Adimali Police Station, Idukki District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 6[TH] DAY OF MAY 2022 / 16TH VAISAKHA, 1944 BAIL APPL. NO. 3013 OF 2022 CRIME NO.290/2022 OF ADIMALY POLICE STATION, IDUKKI** ## **PETITIONERS/ACCUSED 1 TO 6:** 1 DHANUSH MOHAN V M AGED 27 YEARS S/O MOHANAN V.V, VADAKKE VILAKKATHALA,PERINGODE P.O, NAGALASSERY, PERINGODE, PALAKKAD, KERALA, PIN - 679535 2 MUHAMED ISMAIL AGED 40 YEARS, S/O KHADER HAJI K, KARIMBANAKKAL,MURAVATHU PARAMBU,KUNNAPPALLIY P.O,KUNNAPPALLY,PERINTHALMANNA, MALAPPURAM, KERALA, PIN - 679322 3 DEEPAK MOHAN V.M AGED 23 YEARS S/O MOHANAN V.V, VADAKKE VILAKKATHALA,PERINGODE P.O, NAGALASSERY, PERINGODE,PALAKKAD, KERALA, PIN - 679535 4 NAZAR AGED 51 YEARS S/O MOIDU, KUNNAM PUTHUR, KAPPUMUGAM, THAZHEKODE,MALAPPURAM,KERALA, PIN - 679322 5 FASALU RAHMAN AGED 22 YEARS, S/O. HANEEFA, KINATTINGAPARAMBIL HOUSE,CHERIYAPARAPPUR,VETTOM, PALLIPPURAM P.O, TRIPRANGODE, MALAPPURAM, KERALA, PIN - 676102 6 JASEELA MUHAMED AGED 32 YEARS, W/O MUHAMED ISMAIL, KARIMBANAKKAL,MURAVATHU PARAMBU,KUNNAPPALLIY P.O,KUNNAPPALLY,PERINTHALMANNA, MALAPPURAM, KERALA, PIN - 679322 BY ADVS. BAIL APPL. NO. 3013 OF 2022 **==> picture [7 x 9] intentionally omitted <==** T.V.SREEJITH T.K.NAVAS ## **RESPONDENTS/COMPLAINANT & STATE:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 SUB INSPECTOR OF POLICE ADIMALI POLICE STATION, IDUKKI DISTRICT, PIN - 685561 BY ADV.SRI.SANAL P RAJ, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 3013 OF 2022 3 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.3013 of 2020 ------------------------------- Dated this the 6[th] day of May, 2022 ## **O R D E R** This Bail Application is filed under Section 438 of Criminal Procedure Code. 2. Petitioners are apprehending arrest in Crime No.290/2022 of Adimali Police Station. The above case is registered against the petitioners alleging offices punishable under Sections 120 B, 406, 420 r/w 34 of IPC. 3. The prosecution case is that the accused in this case hatched a criminal conspiracy to cheat the _de facto_ complainant and the 1[st] petitioner approached the _de facto_ complainant and gave him a false offer that they will build a house for him at Adimaly for a low cost and executed an agreement with him. It is alleged that the petitioners after receiving an amount of Rs.16,11,408/-(Rupees Sixteen lakhs eleven BAIL APPL. NO. 3013 OF 2022 4 thousand four hundred and eight only) from the _de facto_ complainant, did not complete the building as per the agreement and thereby caused a wrongful loss of Rs.23,11,408/- (Rupees Twenty three lakhs eleven thousand four hundred and eight only) to the _de facto_ complainant. Hence the petitioners committed the aforesaid offence. 4. Heard counsel for the petitioners and the Public Prosecutor. The counsel for the petitioners submitted that even if the entire allegations are accepted, no offence is made out. The counsel submitted that even if the prosecution case is accepted there is only violation of Annexure A1 agreement. The counsel submitted that the petitioners are ready to abide any conditions if this Court grant him bail. The learned Public Prosecutor seriously opposed the bail application. After hearing both sides, I think the petitioners can be released on bail on stringent conditions. Custodial interrogation BAIL APPL. NO. 3013 OF 2022 5 of the petitioners are not necessary in the facts and circumstances of the case. 5. 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 and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 6. Recently the Apex Court in **Siddharth v State of Uttar Pradesh and Another (2021(5)KHC 353)** considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder. - “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is BAIL APPL. NO. 3013 OF 2022 6 a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.” 7. 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 petitioners shall appear before the Investigating Officer BAIL APPL. NO. 3013 OF 2022 7 within two weeks from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail on 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 arresting officer concerned. 3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the BAIL APPL. NO. 3013 OF 2022 8 facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. 4. Petitioners shall not leave India without permission of the jurisdictional Court. 5. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. 6. Petitioners shall appear before the Investigating Officer on all Mondays at 10 am till the final report is filed. 7. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to BAIL APPL. NO. 3013 OF 2022 **==> picture [7 x 10] intentionally omitted <==** law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** DM BAIL APPL. NO. 3013 OF 2022 10 ## **APPENDIX OF BAIL APPL. 3013/2022** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE AGREEMENT DATED 16/09/2020 EXECUTED BETWEEN THE 1ST PETITIONER WITH AFORESAID MR.M.G AJAYAKUMAR Annexure A2 TRUE COPY OF FIR (CRIME NO.0290/2022) OF ADIMALI POLICE //TRUE COPY// ## PA TO JUDGE