Jakir Khan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 BAIL APPL. NO. 2744 OF 2024 CRIME NO.4/2024 OF CYBER CRIME POLICE STATION, ERNAKULAM RURAL, ``` ## **`ERNAKULAM`** ``` IN CRMC NO.892 OF 2024 OF ADDITIONAL SESSIONS COURT ``` ``` (ADHOC)-II, ERNAKULAM ``` ## **`PETITIONER/3RD ACCUSED:`** ``` JAKIR KHAN AGED 46 YEARS S/O NANUKHAN, 35 FLOOR 3 PLOT 38/40 JAMNDAS BUILDING, ISLAMPURA STREET, GIRGAON, GOLPITHA JUNCTION, VTC: MUMBAI P.O, GIRGAON, MAHARASTRA, INDIA, PIN - 400004 ``` ``` BY ADVS. P.M.HABEEB YESMA D. ELAVANTHARA SILPA V. CHANDRAN ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR, CYBER CRIME POLICE STATION THROUGH THE PUBLIC PROSECUTOR OF- HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` BY ADV. SMT SEETHA S SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2744 of 2024** ``` 2 ``` ## **Dated this the 8[th] 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 third accused in Crime No.4/2024 of the Cyber Crime Police Station, Ernakulam registered against the accused (3 in number) for allegedly committing the offence under Section 420 r/w Section 34 of the Indian Penal Code and Section 66 D of the Information Technology Act. The petitioner was arrested on 1.3.2024. 2. The essence of the prosecution case, is that; the accused in furtherance of their common intention, had impersonated themselves by representing them to be the Indian Promoters of an American Company. Accordingly, they induced the de facto complainant to invest Rs.50,00,047/- in an online share trading business by **B.A. No.2744 of 2024** ``` 3 ``` assuring him of good profits. Accordingly, the accused misappropriated an amount of Rs.49,95,047/- from the bank account of the de facto complainant. The accused did not pay any profit or return the capital amount. Thus, the accused have committed the above offences. 3. Heard Sri. P.M.Habeeb, learned counsel appearing for the petitioner and Smt. Seetha S. the learned Senior Public Prosecutor. 4. Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The offences alleged against the petitioner will not be attracted. In any given case, the petitioner has been in judicial custody since 1.3.2024, the investigation in the case has progressed and recovery has been effected. Moreover, the Investigating Officer had obtained the police custody of the petitioner. Therefore, the petitioner’s further custody is not necessary. Hence, **B.A. No.2744 of 2024** ``` 4 ``` the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the accused in furtherance of their common intention have committed a grave economic offence by falsely representing themselves to be the Indian Promoters of an American Company. The entire amount was transferred to the account of the accused from the bank account of the de facto complainant, which shows the involvement of the petitioner in the above crime. The investigation in the case is in progress. If the petitioner is released on bail, there is every likelihood of him tampering with the evidence . Moreover, the petitioner does not have roots in the State of Kerala. Therefore, there is every likelihood of him fleeing from justice. Hence, the application may be dismissed. 6. The prosecution allegation against the accused is that, the accused, in furtherance of their common **B.A. No.2744 of 2024** ``` 5 ``` intention to make unlawful gain, have induced the de facto complainant to pay them money on the assurance that they would give substantial profits in the due course of time. However, they failed to give any profit or return the capital. The fact remains that the petitioner was arrested on 1.3.2024, which is 36 days, the bank accounts in which the amount was transferred have been freezed and the investigation in the case has progressed. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the2024:KER:11608 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 ``` 6 ``` ## **B.A. No.2744 of 2024** grant of bail is a 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. Subsequently, in **State of Kerala v. Raneef** , [(2011) 1 SCC 784], the Honourable Supreme Court has again held 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. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially considering the fact that the petitioner was arrested on 1.3.2024, the investigation in the case has progressed, the recovery has ``` 7 ``` ## **B.A. No.2744 of 2024** been effected, and the petitioner is a person without criminal antecedents, I am of the definite view that the petitioner’s further detention is not necessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions, keeping in mind the fact that the petitioner does not have roots in the State of Kerala. Accordingly, following the decision of the Honourable Supreme Court in **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], I 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 Tuesday and Saturday ``` 8 ``` ## **B.A. No.2744 of 2024** between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the determination of the proceedings. (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 ``` 9 ``` ## **B.A. No.2744 of 2024** effect before the court below on the date of execution of the bond; (v) The petitioner shall furnish his permanent address and his mobile phone number to the court below and the Investigating Officer; (vi) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Ernakulam, without the previous permission of the court below. (vii)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. (viii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court ``` 10 ``` ## **B.A. No.2744 of 2024** below. (ix) 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/- ``` rmm/8/4/2024 **C.S.DIAS, JUDGE**