Dr. Harish Babu Maddineni v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 9TH DAY OF OCTOBER 2012/17TH ASWINA 1934** ## **Bail Appl..No. 6747 of 2012 ()** **-----------------------------CRIME NO.202/2011 OF KALIKAVU POLICE STATION,MALAPPURAM DISTRICT -----------------------------------------** **PETITIONER/ACCUSED: ----------------------------------** **DR.HARISH BABU MADDINENI, AGED 48 YEARS, FLAT NO. 108, CREATIVE SNEHA APARTMENTS, BOTANICAL GARDENS, KONDAPUR, HYDERABAD, ANDHRA PRADESH.** **BY ADV. SRI.RAJIT** **RESPONDENT/COMPLAINANT: -----------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** **BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I.ABDUL RASHEED** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25-09-2012, ALONG WITH BA.NO. 6746/2012 AND BA.NO. 6748/2012, THE COURT ON 09-10-2012 PASSED THE FOLLOWING:** **sts** ## P.BHAVADASAN, J. ------------------------------------------ ## B.A. Nos. 6747, 6746 & 6748 of 2012 ------------------------------------------- Dated this the 9[th] day of October, 2012. Order These applications have been filed under Section 439 of the Cr.P.C. seeking bail. 2. In B.A. No. 6747 of 2012, petitioner is the accused in Crime No.202 of 2011 of Kalikavu Police Station, who is alleged to have committed offence punishable under Section 420 read with Section 34 I.P.C. In B.A. No.6746 of 2012, petitioner is the accused in Crime No. 552 of 2011 of Ponnani Police Station, who is alleged to have committed offences punishable under Section 420 read with Section 34 I.P.C. In B.A. No.6748 of 2012, the petitioner is the accused in Crime No.239 of 2011 of Mankada Police Station for having committed offences punishable under Sections 409 and 420 read with Section 34 I.P.C. In Crime Nos.552 of 2011 of Ponnani Police Station and in Crime No. 202 of 2011 of Kalikavu Police 2 B.A. Nos.6747/12 & con.cases. Station, the JFCM court concerned dismissed the applications for bail filed by the petitioner on the ground that the petitioner had not been produced before the Court and there was no order of remand to judicial custody made by the court and hence bail could not be granted to the petitioner. In fact, while disposing of the application filed by the petitioner in B.A. 6747 of 2012 before the JFCM-I, Manjeri, the said court observed that petition for bail itself is not maintainable as there is no order of remand. 3. In B.A. No. 6748 of 2012, it is pointed out that he has been in remand on 17.7.2012 and his application for bail was dismissed on the ground that the investigation is at an infant stage and he is involved in a number of cases and granting bail will adversely affect the investigation. 4. The exploits of the petitioner have been elaborately mentioned in the decision reported in **Dr.Harish Babu Maddineni v. State of Kerala** (2011(4) B.A. Nos.6747/12 & con.cases. 3 K.L.T. 267), which too was a decision rendered in respect of an application for bail moved by the petitioner herein in another case of similar nature. In the said decision, this court had occasion to hold that the ingredients of the definition of 'Money Circulation Scheme' envisaged under the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 were satisfied while considering the activities carried on by the petitioner. Thereafter, the court went on to hold that even assuming that Prize Chits Act is not applicable, the offences under Sections 406, 418 and 420 were alleged in the case and those being grave and serious offences, precluded the court from granting bail to the petitioner. 5. In the light of the fact that the facts have been narrated in detail in the decision reported in 2011(4) K.L.T. 267, a reiteration of the activities of the petitioner is uncalled for while disposing of these applications. B.A. Nos.6747/12 & con.cases. 4 6. Relying on the decision reported in **State of West Bengal v. Swapan Kumar Guha** (AIR 1982 SC 949), it was sought to be contended that the activity carried on by the petitioner even if be true, does not fall within the ambit of Prize Chits and Money Circulation Scheme (Banning) Act. However, the said contention does not arise for consideration as of now since the activities of the petitioner have been considered in detail and it has been found that the activities fell within the ambit of the Act as could be discernible from the decision reported in 2011(4) K.L.T. 267. 7. As already noticed, in B.A. 6748 of 2012, the petitioner is an accused in Crime No.239 of 2011 of Manakada Police Station, who is alleged to have committed offences punishable under Sections 409 and 420 read with Section 34 I.P.C. Petitioner has produced a copy of the complaint which resulted in the registration of the crime. Referring to the complaint, it was pointed out by the 5 B.A. Nos.6747/12 & con.cases. learned counsel for the petitioner that a mere reading of the complaint would show that the offences under Sections 409 and 420 are not attracted and the petitioner is being unnecessarily detained in custody. It was also pointed out that at any rate, considering the nature of the complaint and since the petitioner has been in custody from 17.7.2010 onwards, his continued custody is unnecessary and the mere fact that he is involved in several other crimes is not a ground to deny bail to the petitioner in the present case. 8. Learned Public Prosecutor pointed out that the petitioner is involved in hundreds of crimes of similar nature and releasing the petitioner on bail may impede the investigation. This court had occasion to consider the various bail applications filed by the petitioner in various other crimes of similar nature and this court had declined to grant bail. 9. In Crime No.239 of 2011 of Manakada Police Station, which forms the basis for B.A. No.6748 of 2012, B.A. Nos.6747/12 & con.cases. 6 the petitioner has been in custody from 17.7.2010 onwards. Learned Public Prosecutor was unable to say as to how long it will take to complete the investigation in Crime No.239 of 2011. The only allegation in the complaint which gave rise to the said registration of crime is that the complainant had deposited Rs.12,000/- and he has received returns in the name of profit only a sum of Rs.15,808/-, even though the petitioner had promised to pay much more than what had been given. It is significant to notice that no interest rate promised, nor the amount promised to be returned as profit are seen mentioned in the complaint. There are vague allegations that the complainant has been cheated and there is breach of promise and the company formed by the petitioner continued to carry on the fraudulent activities. 10. It is not disputed before this court that in several other crimes of the similar nature in which petitioner has been arrayed as accused, bail has been granted. Considering the nature of the allegations in Crime 7 B.A. Nos.6747/12 & con.cases. No.239 of 2011, the fact that he has been in custody from 17.7.2011 onwards, the fact that investigation in this case must have progressed to a good extent and also the fact that the petitioner has been granted bail in several such similar cases, it is felt that his continued custody is unnecessary. Petition is only to be allowed. Hence, B.A. 6748 of 2012 is allowed. 11. As far as B.A. 6747 of 2012 and 6746 of 2012 are concerned, it is stated in the petitions that the petitioner has been formerly arrested on different dates, but he has not been produced before the court concerned within the statutory period. If that be so, as rightly noticed by the court in similar situation, while disposing of B.A. 4080 of 2012 by order dated 3.8.2012, held that non-production of the petitioner before court within the time stipulated or within the reasonable time will result only the petitioner being kept under illegal custody and will not entitle him to be released on bail. This court observed 8 B.A. Nos.6747/12 & con.cases. that in such case, if the petitioner is granted bail, for which he has been remanded, the mere fact that he has been arrested in another case and if he has not been produced before court and remanded to judicial custody, it will not enable the investigating agency to keep him in continued custody. Of course, the observation made by the JFCM-I, Manjeri that since the petitioner has not been produced before court, the application for bail itself is not maintainable may not be quite correct. The wording of Section 437 Cr.P.C. is clear to that effect. Section 437 Cr.P.C. reads as follows: “ **437. When bail may be taken in case of non-bailable offence** .- (1) When any person accused of, or suspected of, the commission of nay non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-” B.A. Nos.6747/12 & con.cases. 9 A bare reading of Section 437 Cr.P.C. shows that the moment a person is arrested, a petition for bail under Section 437 Cr.P.C. is maintainable. To that extent, JFCM Court-I, Manjeri may be wrong in taking the view that the petition is not maintainable. Whether bail should be granted or not is a different question. 12. The consequences of non-production of an arrested accused before the court concerned within the statutory period or within the reasonable time have already been referred to. The custody of such persons may be illegal. But that does not mean that they are entitled to bail. To that extent orders of JFCM-I, Manjeri in Crime No.202 of 2011 and JFCM, Ponnani in Crime 552 of 2011 may be correct. But, to say that the petition for bail is not maintainable is quite a different thing. Whatever that be, except for the technicalities involved, there is no reason to interfere with the orders or to grant bail to the petitioner in B.A.Nos. 6746 and 6747 of 2012. B.A. Nos.6747/12 & con.cases. 10 13. This court is given to understand that in the above two crimes, the Investigating Officer has already sought for production warrants. This court while disposing of B.A. No.4080 of 2012 by order dated 3.8.2012 has observed as follows: “When application for production warrant is submitted before court, such production warrant shall be issued without unnecessary delay. When production warrants are issued the Superintendent of Jail should be directed to produce the accused on a specified day which may be a day within two or three days of the issuance of the warrant; but if there are other compelling reasons which preclude the Superintendent of Jail to produce the accused on the date specified, it is the duty of the Superintendent of Jail to submit a report before the learned Magistrate explaining the reasons for the non-production of the accused. It should not be left to the sweet will and pleasure of the jail authorities or the investigating officer. Once production warrant is issued showing the specific date on which the accused should be produced, it B.A. Nos.6747/12 & con.cases. 11 is the duty of the Superintendent of Jail to produce the accused or to submit a report before court, if the Superintendent of Jail finds it unable to produce the accused because of any compelling or unavoidable reasons or which is beyond his control. If the accused is not produced or order of remand is not made in each of the cases and if the accused is granted bail in other cases, then the accused cannot be detained in custody simply for the reason that arrest of the accused was formally recorded by the Investigating Officer. It is to obviate that difficulty also, the production of the accused before the Magistrate at the earliest is necessary. It is pointed out that now in some of the jails and some of the district centers video conferencing facility is available and if so there would be no difficulty to order remand of the accused, who is lodged in jail, to order remand of the accused to judicial custody making use of the video conferencing facility. Therefore, to the maximum possible that facility should be made use of by the learned Magistrates so that complaint of delay in production of the accused B.A. Nos.6747/12 & con.cases. 12 before court can be avoided to a great extent.” 14. The court may keep in mind the above observations and act accordingly. In the result, **B.A. 6748 of 201** 2 is allowed and the petitioner shall be released on bail on the following conditions: i) Petitioner shall execute a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with two solvent sureties for the like sum each to the satisfaction of JFCM-II, Perinthalmanna. ii) JFCM court shall ensure the identity of the sureties and also the veracity of the tax receipts that are sought to be produced at the time of executing the bond. iii) Petitioner shall make himself available for interrogation as and when required by the Investigating Officer. B.A. Nos.6747/12 & con.cases. 13 iv) Petitioner shall not tamper or attempt to tamper with the evidence or influence or try to influence the witnesses. v) If any of the condition is violated, bail granted to the petitioner shall stand cancelled, and the court may take such steps as are available in law. **B.A. Nos.6746 and 6747 of 2012** are dismissed. P. BHAVADASAN, JUDGE sb.