Muhammad Rasik & Abdul Rahman v. State of Kerala (Bail Application No. 2365 of 2024)

## **`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. 2365 OF 2024`** ``` CRIME NO.528/2024 OF ERNAKULAM CENTRAL POLICE STATION, ``` ## **`ERNAKULAM`** ## **`PETITIONERS/ACCUSED NO.4 & 10:`** - **`1 MUHAMMAD RASIK, AGED 20 YEARS S/O. ZAKARIAH ABDULLA, S A P HOUSE, THAI KADAPPURAM, NILESHWAR P.O, KASARGOD DISTRICT, PIN - 671314`** - **`2 ABDUL RAHMAN, AGED 22 YEARS S/O. ABDUL KABEER, FATHIMA MANZIL, THAI KADAPPURAM, NILESHWAR P.O, KASARGOD DISTRICT, PIN - 671314 BY ADVS. AASHIQUE AKTHAR HAJJIGOTHI NISAMUDEEN K. AMINA AKTHAR`** ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 G. GOPINATHAN, S/O. GOVINDA RAO, MANKOOTTATHIL HOUSE, DIWANS ROAD, ERNAKULAM DISTRICT, PIN - 682016 BY ADV SRI. C. S. HRITHWIK – SENIOR PUBLIC PROSECUTOR`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.2365 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 2365 of 2024 ------------------------------------------------------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 Nos.4 and 10 in Crime No.528/2024 of the Central Police Station, Ernakulam, registered against the accused for allegedly committing the offences punishable under Sections 419 and 420 of the Indian Penal Code. The petitioners were arrested on 03.03.2024. 2. The crux of the prosecution allegation is that: on 22.02.2024, at around 10.30 hours, the defacto complainant received a telephone call from the Mumbai Crime Branch, threatening him that a bank account was opened using his Aadhar card in the Canara Bank, Mumbai and the bank account was indulging ``` 3 ``` ``` BAIL APPL. NO.2365 OF 2024 ``` in the accused money laundering. Accordingly, demanded the defacto complainant to transfer money to their account to close the case. Consequently, the defacto complainant transferred an amount of Rs.9,75,000/- to the bank account of the sixth accused, who in turn transferred the money to the accused Nos.1 to 3, who facilitated the accused Nos.4 and 10 to do crypto currency business. Thus, the accused have committed the above offences. 3. Heard; Sri. Aashique Akthar Hajjigothi, the learned counsel appearing for the petitioners and Sri. C. S. Hrithwik, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that, petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of ``` 4 ``` ## **`BAIL APPL. NO.2365 OF 2024`** Annexure A FIR would substantiate that the above offences will not be attracted. In any given case, the petitioners have been in judicial custody since 03.03.2024, which is 50 days, the investigation in the case is complete and recovery has been effected. Therefore, the petitioners’ further detention is not necessary. Hence, the bail application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report. The Investigating Officer has stated that the investigation is in progress. If the petitioners are released on bail, there is every likelihood of them committing similar offences. Hence, the application may be dismissed. 6. The crux of the prosecution allegation against the petitioners is that, they have received money from the accused Nos.1 to 3 for doing crypto currency ``` 5 ``` ``` BAIL APPL. NO.2365 OF 2024 ``` business. It was the accused Nos.1 to 3, who had impersonated themselves as police officials attached to the Mumbai Crime Branch. The fact remains that the petitioners have been in judicial custody for the last 50 days, the investigation in the case is practically complete and recovery has been effected. 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 grant of bail is the rule and putting a person in jail is an ``` 6 ``` ``` BAIL APPL. NO.2365 OF 2024 ``` 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. 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 ``` 7 ``` ``` BAIL APPL. NO.2365 OF 2024 ``` 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. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioners have been in judicial custody for the last 50 days, that the investigation in the case is practically complete, and the recovery has been effected, I am of the definite view that the petitioners’ further detention is ``` 8 ``` ## **`BAIL APPL. NO.2365 OF 2024`** unnecessary. Hence, I am inclined to allow this application. In the result, the application is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.50,000/- (Rupees Fifty Thousand 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 petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of one month or till the final report is laid, whichever is earlier. They shall also appear before the Investigating Officer as and when required; ii) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person ``` 9 ``` ``` BAIL APPL. NO.2365 OF 2024 ``` 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 petitioners shall not commit any offence while they are on bail; iv) The petitioners shall surrender their passport, if any, before the court below at the time of execution of the bond. If they have no passport, they 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; ``` 10 ``` ``` BAIL APPL. NO.2365 OF 2024 ``` 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 petitioners even while the petitioners are 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** BR ``` 11 ``` ## **`BAIL APPL. NO.2365 OF 2024`** ## **`APPENDIX OF BAIL APPL. 2365/2024`** ``` PETITIONER’S ANNEXURES Annexure-ATRUE COPY OF FIR AND FIS IN CRIME NO. 528/2024 OF CENTRAL POLICE STATION, ERNAKULAM. Annexure-BTRUE COPY OF THE REMAND REPORT IN CRIME NO. 528/2024 OF CENTRAL POLICE STATION, ERNAKULAM ``` ``` RESPONDENT’S ANNEXURES: NIL ```