High Court of KeralaSingle Judge2020-08-04Bail Granted

Muhammed Rafsal v. State of Kerala and Antony S/o Augustine

Case / Petition Number:B.A.No.9020/2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2020-08-04
Court Decision / Holding: This Bail Application is allowed on stringent conditions: (i) The petitioner shall appear before the Investigating Officer within ten days and shall undergo interrogation. (ii) After interrogation, if the IO proposes arrest, the petitioner shall be released on bail on executing a bond for Rs. 50,000 with two solvent sureties. (iii) The petitioner shall appear before the IO for interrogation as and when required and shall cooperate with the investigation, not inducing any witness. (iv) The petitioner shall not leave India without permission of the jurisdictional Court. (v) The petitioner shall not commit any offence similar to the one accused of. (vi) The petitioner shall abide by social distancing guidelines issued by the State and Central Government in view of the Covid-19 pandemic. (vii) If any condition is violated, the court can cancel bail in accordance with law. A passport surrender clause was subsequently incorporated in the order dated 07.08.2020.
Final Disposition: Bail Granted

Parties to the Case

Appellants / Petitioners

Muhammed Rafsal

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam-682031
Antony S/O Augustine (Addl R2)

Legal Representation & Advocates

Counsels for Petitioners

• Sri B. Raman Pillai (Sr.)
• Sri M. Sunil Kumar
• Sri Sujesh Menon
• V.B. Sri Thomas Abraham (Nilackappillil)
• Sri Mahesh Bhanu S.
• Sri A. T. Anil Kumar
• Sri S. Lakshmi Sankar
• Sri R. Anil

Counsels for Respondents

• Sri C.A. Chacko (Adv. for Addl R2)
• Sri Renjith T.R., Public Prosecutor

Case Synopsis & Summary

This is a bail application under section 438 CrPC filed by Muhammed Rafsal, the first accused in Crime No. 736/2019 of Varappuzha Police Station, Ernakulam, alleging offences under sections 406 and 420 read with 34 IPC. The prosecution contends that the accused and associates induced the complainant to part with Rs. 5,70,200 for a promised visa and education opportunity in Italy, but failed to provide the visa or return the money. The petitioner argued that, even if all allegations are true, no offence under section 420 IPC is made out, and a settlement had already been reached with partial repayment — Annexure-2 shows Rs.1,00,000 paid. The defence pointed to the settlement and the incomplete recovery, while the Public Prosecutor urged stringent bail conditions if bail were granted. The court noted that the alleged 420 offence would be a matter for investigation and did not express a view on merits, but proceeded to consider bail in view of Covid-19 norms and the broader bail jurisprudence that favors bail as the rule. The order ultimately allows bail on stringent conditions: the petitioner must appear before the IO within ten days; if arrested later, a bond of Rs.50,000 with two sureties; cooperation with investigations; no travel abroad without permission; refrain from similar offences; and compliance with social distancing guidelines. A passport surrender condition was added in a subsequent order.

Provisions of Law Cited

Section 438 of CrPCSection 406 IPCSection 420 IPCSection 34 IPC

Legal Doctrines & Maxims

Bail is the rule and jail is the exception.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that, even if the facts are accepted as stated, there is no bright line offence under section 420 IPC, arguing that a civil transaction or settlement may have occurred and that a large portion of the amount already paid was reconciled; Annexure-2 demonstrates a Rs.1,00,000 payment. The defense emphasizes the need to consider the bail under the exceptional Covid-19 context and the pending investigation. The applicant asserts willingness to cooperate and comply with stringent conditions, including appearance before the IO and refraining from travel abroad.

Contentions of Respondents

The respondents urge that if bail is granted, it must be subject to stringent conditions. They highlight the seriousness of the allegations and the necessity to preserve the integrity of the investigation, while acknowledging the unsettled status of the 420 charge pending investigation.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Re: Contagion of COVID-19 Virus In Prisons case	Suo Motu Writ Petition(C) No.1 of 2020	Mentioned Only	Cited to justify and implement social distancing and prison-management directions during the Covid-19 pandemic.
W.P(C) No.9400 of 2020	W.P(C) No.9400 of 2020	Mentioned Only	Cited as part of the Full Bench directions on social distancing within prisons.
Chidambaram P v. Directorate of Enforcement	2019 (16) SCALE 870	Positive	Supports the principle that bail is the rule and refusal is the exception to secure a fair trial.

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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 P.V.KUNHIKRISHNAN** **TUESDAY, THE 04TH DAY OF AUGUST 2020 / 13TH SRAVANA, 1942** **Bail Appl..No.9020 OF 2019** **CRIME NO.736/2019 OF Varappuzha Police Station , Ernakulam** ## **PETITIONER/1st ACCUSED:** **MUHAMMED RAFSAL AGED 26 YEARS S/O. IBRAHIM, KOKKARANIKKAL HOUSE, WEST VENGOLA P.O., MAROTTICHVAD, ERNAKULAM.** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SHRI.MAHESH BHANU S. SRI.A.T.ANILKUMAR SMT.S.LAKSHMI SANKAR SRI.R.ANIL** ## **RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 ADDL.R2** **ANTONY S/O AUGUSTINE, PAZHAMBILLY HOUSE, CHENGOTHUKUNNU BHAGOM, KARINGAMTHURUTH, ALANGAD, PIN-683518** **IS IMPLEADED AS ADDITIONAL R2 AS PER THE ORDER DATED 4/2/2020 IN CRL.MA NO.1/2020.** B.A.No.9020/2019 2 **R2 BY ADV. SRI.C.A.CHACKO** **SRI.RENJITH.T.R., PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.9020/2019 3 ## **O R D E R** **Dated this the 4th day of August 2020** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The petitioner is the accused in Crime No.736 of 2019 of Varappuzha Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 406 and 420 read with Section 34 of IPC. 3. The prosecution case is that the petitioner along with the remaining accused induced the defacto complainant to part with a total sum of Rs.5,70,200/- promising that he will be provided a part time job visa and an education visa at Italy for the defacto complainant. The defacto complainant paid the amount, but the accused without providing visa or returning the amount paid cheated him. Hence it is alleged that the petitioner committed the offences. 4. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor. B.A.No.9020/2019 4 5. The learned counsel for the petitioner submitted that even if the entire allegations are accepted, no offence under Section 420 IPC is made out. The learned counsel for the petitioner also submitted that there was a settlement between the petitioner and the defacto complainant and a part payment is already made. Annexure-2 is the receipt showing the payment of an amount of Rs.1,00,000/-. The petitioner will settle the entire issues. 6. Even though Annexure-2 is admitted by the learned counsel for the defacto complainant, he submitted that there is a huge balance pending and the petitioner is not repaying the amount. 7. The learned Public Prosecutor submitted that if this Court is granting bail to the petitioner, stringent conditions may be imposed. 8. After hearing both sides, this Bail Application can be allowed on stringent conditions. The admitted case is that the defacto complainant paid certain amount to the accused for getting admission at IMA College, Italy. But, admission was not B.A.No.9020/2019 5 obtained by the defacto complainant. Now part of the amount paid by the defacto complainant is returned. In such situation, whether an offence under Section 420 IPC is made out or not is a matter to be investigated by the Investigating Officer. I do not want to make any observation on the merits of the matter. Considering the facts and circumstances of this case, this Bail Application can be allowed on stringent conditions. 9. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 10. It is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v. Directorate of Enforcement (2019 (16) SCALE 870),** after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains B.A.No.9020/2019 6 the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 11. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: - (i) The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. - (ii) After interrogation, if the Investigating Officer proposes to arrest the petitioner, he shall be released on bail on executing bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned. - (iii) The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, B.A.No.9020/2019 7 threat or promise 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. - (iv) The petitioner shall not leave India without permission of the jurisdictional Court. - (v) The petitioner shall not commit any offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. - (vi) The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social - distancing in the wake of Covid 19 pandemic. - (vii) If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Sd/- ## **P.V.KUNHIKRISHNAN JUDGE** csl B.A.No.9020/2019 8 The sentence “ **The petitioner shall surrender his passport** ” is incorporated in clause (iv) of the final order dated 04.08.2020 in B.A.No.9020/2019 as per the order dated 07.08.2020 in B.A.No.9020/2019. **Sd/-** **DEPUTY REGISTRAR** csl/12.8.2020