Naresh and Mahendra Kumar v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1716 OF 2024 ``` ``` CRIME NO.304/2024 OF ERNAKULAM TOWN SOUTH POLICE STATION, ``` ## **`ERNAKULAM`** ## **`PETITIONERS/ACCUSED 1 AND 2:`** ``` 1NARESH, AGED 22 YEARS S/O.REWAT RAM, TEC DHOD,MANDOTA, SIKAR, RAJASTHAN, PIN - 332030 ``` ``` 2MAHENDRA KUMAR, AGED 25 YEARS S/O.TRILOK SINGH, SARWARI,SIKAR, RAJASTHAN, PIN - 332030 ``` ## **`BY ADV NIREESH MATHEW`** ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PUBLIC PROSECUTOR SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.1716 of 2024** ``` 2 ``` ## **Dated this the 5[th] day of March, 2024** ## **O R D E R** The application filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.304/2024 of the Ernakulam Town South Police Station, Ernakulam, registered against them for allegedly committing the offence punishable under Section 420 r/w Section 34 of the Indian Penal Code. 2. The essence of the prosecution case, is that; the accused 1 and 2 in furtherance of their common intention to cheat the de facto complainant and make unlawful gain through a firm named, ‘New Life Diagnostics’ (in short, ‘establishment’) functioning at Pallimukku, Ernakulam, promised the de facto complainant and other affected parties that they will ``` 3 ``` ## **B.A. No.1716 of 2024** issue medical certificates in their favour for securing employment abroad. But, without any proper licence or experience, they collected a total amount of Rs.18,000/-, without issuing receipts, conducted the medical tests of the de facto complainant and other affected parties. Since the establishment did not have proper licence, the certificates were invalid. Thus, the accused have committed the above offences. 3. Heard Sri. Nireesh Mathew, learned counsel appearing for the petitioners and Smt. Neema T.V. the learned Senior Public Prosecutor. 4. Learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They are only the paid employees of the establishment. The petitioners have only followed the instructions of their employer. At any rate, the offence under Section 420 will not be attracted as against the petitioners. The petitioners have been in ``` 4 ``` ## **B.A. No.1716 of 2024** judicial custody since 17.2.2024. The investigation in the case is practically 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. She contended that the investigation in the case is still in progress. The petitioners do not have any roots in the State of Kerala. There is every likelihood of them fleeing from justice. The Investigating Officer is looking into all angles as to whether other persons are also affected. If the petitioners are released on bail, it would hamper with the investigation. Therefore, the application may be dismissed. 6. On an appreciation of the materials placed on record, it is evident that the petitioners are the employees of the establishment. The employer of the petitioners is not made an accused in the case till date. The contention of the learned counsel for the petitioners **B.A. No.1716 of 2024** ``` 5 ``` is that the petitioners only followed the instructions of their employer, seems to be tenable. In any case, the petitioners have been in judicial custody since 17.2.2024, that recovery has been effected, that the petitioners have no criminal antecedents, and that the amount involved in the case is Rs.18,000/-. Therefore, I am of the view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions, keeping in mind the fact that the petitioners have no roots in the State of Kerala and by following the principles laid down in **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], 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 ``` 6 ``` ## **B.A. No.1716 of 2024** be subject to the following conditions: - (i) The petitioners shall appear before the Investigating Officer on every Tuesday and Saturday between 9 a.m. and 11 a.m till the final report is filed. Thereafter, they shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the conclusion of the proceedings. 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; **B.A. No.1716 of 2024** ``` 7 ``` (iii) The petitioners shall not commit any offence while he is 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) The petitioners shall furnish their present address, mobile number and shall not leave the territorial jurisdiction of the Court of Session, Ernakulam till the culmination of the proceedings, without the permission of the jurisdictional court. (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of ``` 8 ``` ## **B.A. No.1716 of 2024** bail, if any filed, and pass orders on the same, in accordance with law. (vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (viii) 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** rmm/5/3/2024