Eldhose K LAL v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 4370 OF 2024 ``` ``` CRIME NO.0419/2024 OF Munambom Police Station, Ernakulam ``` ``` AGAINST THE ORDER DATED 08.05.2024 IN CRMC NO.1310 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ARISING OUT OF THE ORDER/JUDGMENT DATED 14.05.2024 IN CMP NO.834 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I MUVATTUPUZHA ``` ``` PETITIONER/ACCUSED 2: ``` ``` ELDHOSE K LAL, AGED 29 YEARS KUTTIPALACKAL HOUSE, KOOTHATTUKULAM KARA, KOOTHATTUKULAM P.O, ERNAKULAM DIST, PIN - 686662 ``` ``` BY ADVS. JOHN T.PAUL P.R.RAJESH ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER, MUVATTUPUZHA POLICE STATION, MUVATTUPUZHA, ERNAKULAM RURAL DISTRICT, PIN - 686661`** - **`3 VINEETHA V.S. (IMPLEADED AS R3) PATTUPALAPPURATH HOUSE, MULAVOOR P.O, MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, (IMPLEADED AS R3 AS PER OREDR DTD 12/6/24 IN CRL.M.APPL/1/2024)`** ## **`BY ADV BALRAM S.A.`** ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.4370 of 2024** **`2`** ## **Dated this the 12[th] day of June, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.419/2024 of the Muvattupuzha Police Station, Ernakulam, registered against the accused for allegedly committing the offences under Sections 406 and 420 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 19.04.2024. 2. The crux of the prosecution case is that; the first accused, with an intention to make illegal gain, had assured the defacto complainant an employment visa in Israel. Consequently, the accused 1 and 2 received an amount of Rs.5,51,700/- from the defacto complainant during the period from 27.04.2023 to 07.12.2023. However, the accused failed to secure the visa or return the amount received. Thus, the accused have committed the above offences. **B.A. No.4370 of 2024** **`3`** 3. Heard; Sri.John T. Paul, the learned counsel appearing for the petitioner, Smt. Neema. T.V, the learned Public Prosecutor and Sri..Balram S.A, the learned counsel appearing for the intervenor/defacto complainant. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has received any money from the defacto complainant. The petitioner was only a paid employee of the first accused. The first accused has been granted an interim order by this Court in B.A.No.4047/2024 and has not been arrested. It is learnt that the first accused has repaid a substantial amount to the defacto complainant. The petitioner has been in judicial custody since 19.04.2024, which is 54 days, the investigation in the case is complete, and the recovery has been effected. Therefore, the petitioner's further **B.A. No.4370 of 2024** **`4`** detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed. 6. The learned counsel for the intervenor also reiterated the submissions of the learned Public Prosecutor. Nonetheless, he did not dispute the fact that the first accused has paid the defacto complainant an amount of Rs.5/- lakh, pursuant to the order dated 05.06.2024 passed by this Court in B.A.No.4047/2024. 7. The prosecution allegation against the accused is that they cheated the defacto complainant by assuring an employment visa in Israel. Accordingly, the accused received an amount of Rs. 5,51,700/- from the defacto complainant. However, they did not secure the visa or **B.A. No.4370 of 2024** **`5`** return the amount received. The fact remains that the petitioner has been in judicial custody for the last 54 days, the petitioner is allegedly only the paid employee of the first accused, and that the subject matter in dispute between the first accused and the defacto complainant is almost settled. 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 **B.A. No.4370 of 2024** **`6`** the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 9. 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. The right to bail cannot be denied merely due to the sentiments of the society. 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioner has been in judicial custody for the last 54 days, that the investigation in the case is practically complete, that the recovery has been effected, and that the petitioner is only a paid employee of the first accused, I am of the definite view that the petitioner’s further detention is not necessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a **B.A. No.4370 of 2024** **`7`** bond for Rs.50,000/- (Rupees fifty thousand 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 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; **B.A. No.4370 of 2024** **`8`** (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 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 **B.A. No.4370 of 2024** **`9`** 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/- mtk/12.06.24 **C.S.DIAS, JUDGE**