Muhammed Arshad 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. 2550 OF 2024 ``` ``` CRIME NO.244/2024 OF INFOPARK POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN CRMP NO.741 OF 2024 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD PETITIONER/ACCUSED: ``` ``` MUHAMMED ARSHAD AGED 21 YEARS C/O. ASHRAF, ANAS VILLA, KALLURAVI, KANHANGAD SOUTH, HOSDURG, KASARAGOD, PIN - 671531 ``` ``` BY ADV C.K.SREEJITH ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SRI.C.S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2550 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 second accused in Crime No.244/2024 of Infopark Police Station, Ernakulam, registered against the accused for allegedly committing the offences punishable under Sections 384 and 420 r/w Section 34 of the Indian Penal Code, 1860, and Section 66D of the Information Technology Act, 2000. The petitioner was arrested on 17.03.2024. 2. The crux of the prosecution case, is that; the accused, in furtherance of their common intention, to make unlawful gain for themselves and unlawful loss to the defacto complainant, telephoned him and ``` 3 ``` ## **B.A. No.2550 of 2024** impersonated themselves as Delhi Police and told him that someone was using his HDFC Account for unlawful activities. In order to exonerate him from the investigation and to legalize his funds through RBI super vision account, he has to pay the accused an amount of Rs.19,90,000/-. Accordingly, the accused extorted the above said amount from the account of the defacto complainant. Thus, the accused have committed the above offences. 3. Heard; Sri. Sreejith.C.K, the learned counsel for the petitioner and Sri. C.S.Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel 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. The petitioner is only a dealer in ``` 4 ``` ## **B.A. No.2550 of 2024** digital currency like BITCOIN and other digital currencies, which is permissible by the Reserve Bank of India. The petitioner has customers all over the world. The defacto complainant may have lost his money while doing such transactions. However, the petitioner cannot be accused of the monetary transaction done by the defacto complainant. In any case, the petitioner has been in judicial custody since 17.03.2024, 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. If the petitioner is released on bail, there is every likelihood of him tampering with evidence and sabotaging the investigation. The Investigating **B.A. No.2550 of 2024** ``` 5 ``` Officer has to find out whether the petitioner has other criminal antecedents. Therefore, the application may be dismissed. 6. On an evaluation of the materials on record, it is seen that grave economic offences have been alleged against the petitioner and the other accused for having impersonated themselves as Delhi Police and made the de facto complainant to pay money to them for the purpose of hushing up the activities done by the defacto complainant. 7.In **Chidambaram P. v. Central Bureau of Investigation** [2019 KHC 7072 (SC)] the Honourable Supreme Court has observed thus:- 22. The jurisdiction to grant bail has to be exercised on the basis of the well - settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail: - (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of **B.A. No.2550 of 2024** ``` 6 ``` the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another 2001 (4) SCC 280). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. xxxxxxxxxxx” 8. in **Chandra Sarkar v.** Similarly, **Kalyan Rajesh Ranjan alias Pappu Yadav and another** [(2004) 7 SCC 528], the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, ``` 7 ``` ## **B.A. No.2550 of 2024** the severity of the punishment, the reasonable apprehension of the accused tampering with the evidence or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the evidence by the accused. 9. Likewise, in **Gurucharan Singh Ors. V. State (Delhi Administration)** [(1978) 1 SCC 118], the Honourable Supreme Court has held that while considering an application of bail, it is necessary to consider the nature and seriousness of the offence; the ``` 8 ``` ## **B.A. No.2550 of 2024** character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar factors which may be relevant in the facts and circumstances of the case. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, and the proclamation of the law in the afore-cited decisions, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, the potential severity of the punishment that is likely to be imposed on him, the investigation is at its preliminary stage and the reasonable apprehension projected by the prosecution that there is every likelihood of the petitioner tampering ``` 9 ``` ## **B.A. No.2550 of 2024** with the evidence, I am of the firm view that the petitioner is not entitled to be released on bail at this stage, because it would have a deleterious impact on the society. The application is meritless and is only to be rejected. Resultantly, the application is dismissed. SD/- rmm/8/4/2024 **C.S.DIAS, JUDGE**