Jaffer v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 BAIL APPL. NO. 3955 OF 2024 ``` ``` CRIME NO.10/2024 OF CYBER CRIME POLICE STATION, ERNAKULAM ``` ``` RURAL, Ernakulam ``` ## **`PETITIONER/S:`** ``` JAFFER, AGED 49 YEARS S/O. SAITHALIKUTTY, KARUTHAMOIDEENKUTINTEPURAKKKAL, ANANGADI, KADALUNDI NAGARANM, VALLIKKUNNU, MALAPPURAM DISTRICT., PIN - 673314 ``` ``` BY ADVS. P.SAMSUDIN LIRA A.B. NASRIN WAHAB DEVIKA E.D. ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Smt Neema T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.3955 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.3955 of 2024** ## **-----------------------------------** ## **Dated this the 29[th] day of May, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the seventh accused in Crime No.10/2024 of the Cyber Crime Police Station, Ernakulam Rural, Ernakulam, registered against the accused (seven in number), for allegedly committing the offences punishable under Section 420 r/w Section 34 of the Indian Penal Code and Sec.66D of the Information Technology Act. The petitioner had surrendered on 29.4.2024. 2. The crux of the prosecution case is that; the accused, in furtherance of their common intention to cheat the de facto complainant, made telephone calls to him by impersonating themselves to be Police officials of the Mumbai Colaba Police Station, and threatened the de facto 3 BA No.3955 of 2024 complainant that an arrest warrant was issued against him by the Hon’ble Supreme Court of India. They induced the de facto complainant to transfer an amount of Rs.1,15,00,000/- to the bank account of the accused. Accordingly, the accused cheated the de facto complainant. Thus, the accused have committed the above offences. 3. Heard; Sri.Samsudin Panolan, learned counsel appearing for the petitioner and Smt.Neema T.V, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate the petitioner’s involvement in the case. Pursuant to Annexure A3 order passed by this Court, the petitioner surrendered before the Investigating Officer. However, the petitioner was arrested and incarcerated for the last one month. The investigation in the case so far as it relates to the petitioner is practically complete and recovery has been effected. Therefore, the petitioner’s 4 BA No.3955 of 2024 further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. She submitted that investigation in the case is in progress. She also stated that a white-collar crime has been committed by the accused. If the petitioner is released on bail, there is every likelihood of him committing a similar offence and also tampering with the evidence. Hence, the application may be dismissed. 6. The prosecution allegation against the accused is that they impersonated themselves to be Police Officials and threatened the de facto complainant that they would arrest him pursuant to a warrant issued by the Hon’ble Supreme Court. Consequently, the accused induced the de facto complainant to transfer Rs.1,15,00,000/- to their bank accounts. Accordingly, they cheated the de facto complainant. The fact remains that the petitioner has been in judicial custody for the last one month, the investigation in the case is practically complete and recovery has been 5 BA No.3955 of 2024 effected. Moreover, there is no material to show that the petitioner has any criminal antecedents. 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 **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. 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. Once the charge sheet is filed, a strong case has to be made out for continuing a person in 6 BA No.3955 of 2024 judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, particularly taking into consideration the fact that the petitioner has been in judicial custody for the last one month, that the investigation so far as it relates to the petitioner concerned is complete, that the petitioner does not have any criminal antecedents and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. 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: 7 BA No.3955 of 2024 (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 them 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; 8 BA No.3955 of 2024 (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 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/-** sks/29.5.2024 **C.S.DIAS, JUDGE**