Eliyas Raju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946** **BAIL APPL. NO. 3180 OF 2024** **CRIME NO.528/2024 OF Ernakulam Central Police Station, Ernakulam PETITIONER/S:** **ELIYAS RAJU AGED 34 YEARS KARUMANKULAM HOUSE, AZHAKAM P O, NJALUKARA, ERNAKULAM, PIN - 683577** **BY ADVS. S M Prasanth K.RAMAKUMAR (SR.)(R-245) T.RAMPRASAD UNNI(K/962/1992) ASWINI SANKAR R.S.(K/333/2013) SHEHIN S.(K/3733/2023)** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR.P.P.SMT.NEEMA .T.V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3180 OF 2024 2 ## Dated this the 23[rd] day of April, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 11[th] accused in Crime No.528/2024 of the Central Police Station, Ernakulam, registered against the accused, for allegedly committing the offences punishable under Sections 419, 420 and 120B r/w. Section 34 of the Indian Penal Code (in short, 'IPC'). The petitioner was arrested on 06.03.2024. 2. The prosecution case, in a nut shell, is that: on 23.02.2024 at around 10.30 hours, the accused, in furtherance of their common intention and a conspiracy hatched between them, contacted the defacto complainant over skype by impersonating them as CBI Officials, and they demanded the defacto complainant to transfer Rs.29,91,000/- to the bank account of the 11[th] accused, otherwise, they would implicate the BAIL APPL. NO. 3180 OF 2024 3 defacto complainant in a money laundering case. The accused then withdrew the above amount through different bank accounts and cheated the defacto complainant. Thus, the accused have committed the above offences. 3. Heard; Sri.Jimmi Jose, the learned counsel appearing for the petitioner and the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. A reading of the First Information Report would substantiate that the offences alleged against the petitioner will not be attracted against him. The petitioner has not received any money in his individual name. The same were all manipulated by the authorised signatory of the company named Aden Business Solutions Ltd. The petitioner does not have criminal antecedents. In any BAIL APPL. NO. 3180 OF 2024 4 given case, the petitioner has been in judicial custody for the last nearly 50 days, the investigation in the case is complete and recovery has been effected. Therefore, the petitioner's further 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 the entire money was transferred to the bank account of the petitioner. If the petitioner is released on bail, there is every likelihood of him tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed. 6. The petitioner had moved a similar application before the Court of Session, Ernakulam which was dismissed by the learned Sessions Judge as per BAIL APPL. NO. 3180 OF 2024 5 Annexure-1 order, principally on the finding that the investigation in the case was only at the preliminary stage. The fact remains that the petitioner has been in judicial custody for the last nearly 50 days. It is also not disputed that the investigation in the case is practically complete. 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 BAIL APPL. NO. 3180 OF 2024 6 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 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. In **Hussainara Khatoon (I) v. Home Secy.,** **State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under BAIL APPL. NO. 3180 OF 2024 7 trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 11. 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. 12. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on considering the fact that the petitioner has been in judicial custody for the last nearly 50 days, the investigation in the case is practically complete and the recovery has been effected, and further that the petitioner does not have BAIL APPL. NO. 3180 OF 2024 8 any criminal antecedents, I am of the definite view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the application. 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 filed. 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 BAIL APPL. NO. 3180 OF 2024 9 ## 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 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 to effect recoveries on the - necessary, information, if any, given by the petitioner BAIL APPL. NO. 3180 OF 2024 10 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/- **C.S.DIAS, JUDGE** rkc/23.04.24 BAIL APPL. NO. 3180 OF 2024 11 ## **APPENDIX OF BAIL APPL. 3180/2024** ## **PETITIONER ANNEXURES** **Annexure 1** **TRUE COPY OF ORDER OF HON'BLE SESSIONS JUDGE ERNAKULAM**