HabeeB Rahman v. State of Kerala and The Station House Officer, Kundara Police Station, Kollam District

# **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. 3343 OF 2024** **CRIME NO.328/2024 OF Kundara Police Station, Kollam** **AGAINST THE ORDER/JUDGMENT DATED 09.04.2024 IN CRMC NO.619 OF 2024 OF DISTRICT COURT & SESSIONS COURT,KOLLAM PETITIONER/S:** **HABEEB RAHMAN. C.V AGED 46 YEARS S/O KRISHNAN, BISMILLA VEEDU, MANNANGANDI THAZHATH, EDAVALATH PARAMBU, PALLIPPOI, CHELANNUR. P.O, KOZHIKKODE DISTRICT, PIN - 673613** **BY ADVS. M.A.SULFIA ABDUL JALEEL.A** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER KUNDARA POLICE STATION, KOLLAM DISTRICT., PIN - 691501** ## **OTHER PRESENT:** ## **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3343 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 accused in Crime No.328/2024 of the Kundara Police Station, Kollam, registered against the accused, for allegedly committing the offences punishable under Sections 419 and 420 r/w. Section 34 of the Indian Penal Code (in short, 'IPC') and Section 66D of the Information Technology Act. The petitioner was arrested on 24.03.2024. 2. The prosecution case, in brief, is that: the accused, with an intention to make unlawful gain for himself and to make unlawful loss for the defacto complainant, had contacted the defacto complainant through Facebook and offered him a loan for Rs.1,00,000/- and received an amount of Rs.10,000/-. Subsequently, he made the defacto complainant again pay him a further amount of Rs.70,300/- on different BAIL APPL. NO. 3343 OF 2024 3 occasions. The accused received a total amount of Rs.80,300/from the defacto complainant. Subsequently, the accused again withdrew an amount of Rs.8,50,500/- from the bank account of the defacto complainant by committing an online fraud. Thus, the accused has committed the above offences. 3. Heard; Smt.Sulfia M.A., the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. The petitioner has no connection or role in the amount that was paid by the defacto complainant. In fact, the petitioner was with his son, who was seriously injured in an accident, in the hospital. The online transactions were done by a person named Nihal, to whom the petitioner had given two blank signed cheques. Actually, the petitioner is a BAIL APPL. NO. 3343 OF 2024 4 victim in the above crime. In any given case, the petitioner has been in judicial custody for the last one month, 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. He submitted that the investigation in the case is in progress. He further stated that if the petitioner is released on bail, there is every likelihood of him tampering with the evidence and sabotaging the investigation. Hence, the application may be dismissed. 6. The crux of the prosecution allegation is that the accused had received Rs.80,300/- from the defacto complainant by assuring him a loan from a firm named Aspire Finance. Subsequently, the accused committed BAIL APPL. NO. 3343 OF 2024 5 an online fraud and withdrew Rs.8,50,500/- from the bank account of the defacto complainant. The fact remains that the petitioner has been in judicial custody for the last one month, the investigation in the case is complete and recovery has been effected. The petitioner had filed a similar application before the Court of Session, Kollam, which was dismissed by the learned Sessions Judge as per Annexure-A4 order principally on the finding that the investigation was in progress. 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 BAIL APPL. NO. 3343 OF 2024 6 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 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 BAIL APPL. NO. 3343 OF 2024 7 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 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. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 12. On an anxious consideration of the facts, the BAIL APPL. NO. 3343 OF 2024 8 rival submissions made across the Bar and the materials placed on record, particularly taking note of the fact that the petitioner has been in judicial custody for the last 30 days, the investigation in the case is practically complete, the recovery has been effected and the petitioner does not have criminal antecedents, I am of the 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 BAIL APPL. NO. 3343 OF 2024 9 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 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. BAIL APPL. NO. 3343 OF 2024 10 - (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 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. 3343 OF 2024 11 ## **APPENDIX OF BAIL APPL. 3343/2024** ## **PETITIONER ANNEXURES** |**Annexure A1**|**A TRUE COPY OF REMAND REPORT IN CRIME**| |---|---| ||**NO.328/2024 OF KUNDARA POLICE STATION**| ||**DATED 24/03/2024**| |**Annexure A2**|**A TRUE COPY OF FIR IN CRIME NO.328/2024**| ||**OF KUNDARA POLICE STATION DATED**| ||**25/02/2024**| |**Annexure A3**|**A TRUE COPY REPRESENTATION DATED**| ||**12/04/2024**| |**Annexure A4**|**A CERTIFIED COPY OF ORDER IN CRL.MC**| ||**NO.619/2024 DATED 08/04/2024 OF LEARNED**| ||**SESSIONS COURT, KOLLAM**| |**Annexure A5**|**TRUE COPY OF DISCHARGE SUMMARY OF SON OF**| ||**THE PETITIONER DATED NIL**|