Muhammed Tanish.K.P and others v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF APRIL 2024 / 5TH VAISAKHA, 1946 ``` ## `BAIL APPL. NO. 3449 OF 2024` ``` CRIME NO.528/2024 OF ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER DATED 15.04.2024 IN CRMC NO.1131 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ``` ## `PETITIONER:` ``` 1MUHAMMED TANISH.K.P AGED 33 YEARS,S/O MEHABOOB. K.P, A.P.HOUSE, IRANJIVAYAL, ARAKKINAR.P.O, BEPPOOR, KOZHIKODE DISTRICT, PIN – 673028 2AHAMMED RISWAN AGED 27 YEARS S/O ASHRAF, THAJ MANZIL HOUSE, KANNAMCHERI.P.O, KALLAYI, KOZHIKODE DISTRICT, PIN – 673003 3FAZIL.K.V AGED 34 YEARS S/O HASSAN KOYA, K.V.HOUSE, V.K.KRISHNA MENON ROAD, KALLAYI, PANNYAMKARA VILLAGE, KOZHIKODE DISTRICT, PIN – 673003 4SUHAIB.M.V AGED 29 YEARS S/O ASHARAF,SUHARAS HOUSE, THULAMATTOM PARAMBU HOUSE, MATHOTTAM, ARAKKINAR. P.O, BEPPOOR, KOZHIKODE DISTRICT, PIN – 673028 5MUHAMMED MUSTAFA.K.K AGED 50 YEARS S/O MUHAMMED KOYA, KANIKKAL HOUSE, NELLALAM.P.O, CHERUVANNOOR, KOZHIKODE, PIN – 673027 6PRAJEESH AHAMMED AGED 40 YEARS S/O AHAMMED KOYA,CHERIKKAL, CHERRIYAKOM HOUSE, THIRUVANNOOR.P.O, PANNIAMKARA, KOZHIKODE, PIN – 673029 BY ADVS.T.P.SANTHOSH KUMAR C.H.ABDUL RASAC STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` RESPONDENT: ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3449/2024_ _-:2:-_ _Dated this the 25[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 accused Nos.1, 2, 3, 5, 7 & 8 in Crime No.528/2024 of the Central Police Station, Ernakulam, registered against the accused for allegedly committing the offences punishable under Sections 419 & 420 of the Indian Penal Code, 1860. The petitioners were arrested on 03.03.2024. 2. The gist of the prosecution case is that: the accused, with an intention to cheat the de-facto complainant, impersonated themselves as CBI officials and threatened the de-facto complainant that they would arrest him in connection with the illegal transaction that was conducted by him through the Canara Bank, Mumbai branch. Accordingly, the accused made the de-facto complainant transfer an _B.A.No.3449/2024_ _-:3:-_ amount of Rs.29,91,000/- to their bank account. Thus, the accused have committed the above offences. 3. Heard; Sri. T.P. Santhosh Kumar, the learned counsel appearing for the petitioners and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. There is no material to substantiate the fact that the petitioners have committed the above offences. In any given case, the petitioners have been in judicial custody for the last 52 days, the investigation in the case is complete, and recovery has been effected. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. The Investigating Officer is also ascertaining _B.A.No.3449/2024_ _-:4:-_ whether the petitioners have criminal antecedents. If the petitioners are let off on bail, they would sabotage the entire investigation and intimidate the witnesses. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioners is that, they impersonated themselves as CBI officials, blackmailed the de-facto complainant and made him pay an amount of Rs.29,91,000/-. The fact remains that the accused have been in judicial custody for the last 52 days, the investigation in the case is practically complete, and recovery has been effected. 7. It is well settled in **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], that merely because a person has an antecedent, the same shall not be treated as a ground to deny bail to that person. 8. In **Sanjay Chandra v. CBI** [2012 1 SCC 40], the Honourable Supreme Court has categorically held _B.A.No.3449/2024_ _-:5:-_ 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. 9. 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 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. 10. 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 _B.A.No.3449/2024_ _-:6:-_ in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 11. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into consideration the fact that the petitioners have been in judicial custody for the last 52 days, the investigation in the case is complete, and recovery has been effected, I am of the definite view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.1,00,000/- (Rupees one lakh only) each 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: ## _B.A.No.3449/2024_ _-:7:-_ - (i) The petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. 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 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 passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits 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 _B.A.No.3449/2024_ _-:8:-_ 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. - (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 Anr.** [2020 (1) KHC 663]. Sd/- ## **C.S.DIAS,JUDGE** DST/25.04.24 //True copy// P.A. To Judge