High Court of KeralaSingle Judge2020-04-24Bail granted to the applicant with specified co...

Jose, S/o Jacob v. State of Kerala

Case / Petition Number:Bail Application No.2408 of 2020 (Crime No.39/2020 of Kodakara Police Station)

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2020-04-24
Court Decision / Holding: Bail application allowed. The petitioner to be released with conditions: furnish permanent address and contact details of himself and sureties, execute bond of Rs.50,000 with two solvent sureties; appear before the IO on Saturdays until final report; not tamper with evidence or leave the state; if breached, bail can be canceled; release to the Station House Officer with supervision by the jurisdictional court.
Final Disposition: Bail granted to the applicant with specified conditions.

Parties to the Case

Appellants / Petitioners

Jose, S/o Jacob

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv. T.N. Manoj

Counsels for Respondents

• Public Prosecutor SrI. Amjad Ali

Case Synopsis & Summary

This is a bail application under Section 439 CrPC filed by Jose, the first accused in Crime No.39 of 2020 of Irinjalakuda Police Station, alleging offenses under Sections 406, 420 read with Section 34 of the IPC. The prosecution asserts that Jose and another accused, acting in concert, induced the de facto complainant to believe they could arrange a visa to migrate to Canada, collecting Rs. 7.25 lakh, only to provide a fake visa and fail to repay. Jose was arrested on 14.03.2020. In opposition, the petitioner’s advocate argued that he has been in custody for over a month, the investigation is complete, and he is actually a victim since the second accused had also collected money from him; no offense as alleged against him. The Public Prosecutor countered that investigation has culminated in a final report and continued detention is unnecessary. The court anchors its reasoning in established Supreme Court bail jurisprudence, citing Sanjay Chandra v. CBI, Nikesh Tarachand Shah v. Union of India, Gurbaksh Singh Sibbia v. State of Punjab, and P. Chidambaram v. Directorate of Enforcement, along with COVID-19 related prison decongestion directives. Given the completed investigation, the petitioner’s custodial period, and the pandemic context, the judge allows bail with conditions including address/surety disclosures, bond, periodic appearances, non-tampering, no state travel, and a right to cancellation for breach. The ruling reiterates that bail is the general rule and jail is the exception, safeguarding Article 21 liberty.

Provisions of Law Cited

Section 439 of the Code of Criminal ProcedureSections 406, 420 read with Section 34 of the Indian Penal Code

Legal Doctrines & Maxims

Bail is the rule and jail is the exception
Refusal of bail is a restriction on the personal liberty guaranteed under Article 21 of the Constitution

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel contended that the accused has already spent over a month in judicial custody, investigation is complete, and he is allegedly a victim since the second accused also collected money from him; hence, he should not be subjected to further detention without a trial. He urged that the presumption of innocence and the right to personal liberty necessitate bail, especially in light of judicial pronouncements emphasizing bail as the norm.

Contentions of Respondents

The Public Prosecutor submitted that investigation is complete and a final report has been filed; continued custody is unnecessary for the purpose of the investigation and for ensuring compliance with bail conditions, if granted, given that the COVID-19 situation and related decongestion directives support release on bail with appropriate safeguards.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Sanjay Chandra v. CBI	2012 (1) SCC 40	Positive	Cited to establish that bail is the rule and jail is the exception, and that refusal of bail restricts personal liberty under Article 21.
Nikesh Tarachand Shah v. Union of India	2018 (11) SCC 1	Positive	Reiterates bail-oriented approach and strengthens the Article 21-based rationale further developed in Sanjay Chandra.
Gurbaksh Singh Sibbia v. State of Punjab	(1980) 2 SCC 565	Positive	Cited as foundational bail jurisprudence supporting the bail-rule principle.
P. Chidambaram v. Directorate of Enforcement	2019 SCC Online SC 1549	Positive	Fortifies the bail principle and its scope within modern enforcement contexts.
In Re: Contagion of COVID-19 Virus In Prisons case	Suo Motu Writ Petition (C) No.1 of 2020	Positive	COVID-19 jurisprudence emphasizing decongestion of prisons and relevance to bail considerations.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT:** **THE HONOURABLE MR.JUSTICE C.S. DIAS** # **FRIDAY, THE 24TH DAY OF APRIL 2020/4TH VAISAKHA , 1942** **Bail Application No.2408 of 2020 (Crime No.39/2020 of Kodakara Police Station)** **Petitioner/1st Accused:** **Jose, S/o.Jacob, Aged 52, Malieakkal House, Potta Village and Desom, Thrissur District.** **By Adv.T.N.Manoj** ## **Respondent** **State of Kerala represented by the Public Prosecutor, High Court of Kerala.** **BY Public Prosecutor SrI.Amjad Ali** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24.04.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A No.2408 of 2020 ..2.. ## **ORDER** This is an application filed under Section 439 of the Code of Criminal Procedure. 2. The petitioner is the first accused in Crime No.39 of 2019 of the Irinjalakuda Police Station. The petitioner is alleged to have committed the offences punishable under Sections 406, 420 read with section 34 of the Indian Penal Code. 3. The prosecution case, in brief, is that: the accused 1 and 2 in furtherance of a common intention, made the defacto complainant believe that they would arrange a Visa for him to migrate to Canada and accordingly, received an amount of Rs.7,25,000/- from the de facto complainant. However, the defacto complainant was given a fake Visa. Thereafter, the accused did not repay the amount that was received. Hence the accused have committed the above offences. 4. The petitioner was arrested on 14.3.2020. 5. Heard the learned counsel for the petitioner and B.A No.2408 of 2020 ..3.. the learned Public Prosecutor via video-conferencing. 6. The learned counsel for the petitioner argued that it is more than a month that the petitioner is in judicial custody. Investigation in the above case is complete. According to him, the petitioner is actually a victim in the said episode because the second accused had collected the money from the petitioner also. The petitioner has not committed any offence as alleged in the crime, and is innocent. 7. The learned Public Prosecutor on instructions submitted that investigation in the case is complete. The Final report has been filed. The petitioner's further detention is unnecessary. 8. The Hon'ble Supreme Court in **Sanjay Chandra v. CBI** [2012 (1) SCC 40] held as follows: "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the B.A No.2408 of 2020 ..4.. personal liberty of the individual guaranteed under Article 21 of the Constitution". 9. Recently, the Honourable Supreme Court in **Nikesh Tarachand Shah v. Union of India** [2018 (11) SCC 1] after going back to the days of the Magna Carta and after referring to Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] has reiterated the same view in **Sanjay Chandra v. CBI (supra).** Again, in P **.Chidamabram v. Directorate of Enforcement** [(2019) SCC Online SC 1549] the above proposition has been fortified. 10. After the outbreak of the Novel Corona Virus (COVID -19) pandemic in the country, the Hon'ble Supreme Court in In Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition (C) No.1 of 2020) observed that the issue of overcrowding of prisons is a matter of serious concern. The State Governments were directed to take adequate measures to de-congest the B.A No.2408 of 2020 ..5.. prisons. Following the above direction, the Home Department, Government of Kerala has promulgated order dated 25.03.2020, inter alia, directing the release of under-trial prisoners alleged to have committed offences punishable with punishment for seven years or less. Later, a Full Bench of this Court by order dated 25.03.20202 in W.P.(C) No.9400 of 2020 (Suo Motu), has issued directions to de-congest the prisons in the State, keeping in mind the proposition that bail is the rule and jail is the exception. 11. Having regard to the facts and circumstances of the case, particularly the fact that that investigation in the case is completed and the petitioner has been in judicial custody since 14.3.2020 and that the petitioner's further incarceration is unnecessary and the law laid down by the Hon'ble Supreme Court in the afore quoted decisions, and also due to Covid-19 pandemic, I am inclined to allow this bail application. B.A No.2408 of 2020 ..6.. 12. In the result this bail application is allowed, on the following conditions:- (i) Due to the present National lock-down and the closure of Courts, the Jail Superintendent, where the petitioner is incarcerated, is directed to release the petitioner on him furnishing his permanent address and phone number and the addresses and phone numbers of his proposed sureties/immediate relatives. The petitioner shall also file an undertaking to the Jail Superintendent that he and his sureties will execute the bail bond before the jurisdictional Court within one week of its reopening. The Jail Superintendent after ensuring the compliance of the above conditions, shall release the petitioner to the Station House Officer of the Police Station where the crime has been registered, who shall after noting down the B.A No.2408 of 2020 ..7.. above details, release the petitioner. The Investigating Officer shall keep a close vigil on the whereabouts of the petitioner. (ii) The petitioner shall within one week from the re-opening of the jurisdictional Court, if not already re-opened, execute a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court. (iii) The petitioner shall appear before the Investigating Officer on all Saturdays between 10.00 a.m and 11 a.m till final report is filed. (iv) The petitioner shall not tamper with the evidence or influence the witnesses in the case, in any manner, whatsoever. (v) The petitioner shall not commit any offence while on bail. (vi) The petitioner shall not leave the State B.A No.2408 of 2020 **==> picture [18 x 9] intentionally omitted <==** of Kerala without the permission of the jurisdictional court. (vii) Needless to mention that, if the petitioner violates any of the above conditions, the Station House Officer shall be at liberty to approach the jurisdictional Court and file appropriate application seeking for cancellation of the bail. Sd/- **C.S.DIAS, JUDGE** kkj/ 24.04.2020