P.V. Vahab Samad and Sareena Vahab v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942** ## **Bail Appl..No.382 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRMC 21/2020 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE** **CRIME NO.560/2019 OF Feroke Police Station , Kozhikode** ## **PETITIONERs/ACCUSED 1 and 2 :** - **1 P.V. VAHAB SAMAD AGED 51 YEARS S/O.P.V.A.SAMAD, PEEVEES HOUSE II, PETTA FEROKE, KOZHIKODE** - **2 SAREENA VAHAB AGED 45 YEARS W/O.VAHAB SAMAD, PEEVEES HOUSE II, PETTA FEROKE, KOZHIKODE.** **BY ADVS. SRI.GEORGE SEBASTIAN SMT.SERA ROSE GEORGE** ## **STATE/RESPONDENT/COMPLAINANT:** - **1 STATE OF KRALA (SHO, FEROKE POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031** - **2 ADDL.R2 SAFEER C.P. S/0 HAMSAKOYA C.P, SHAMS, NALLUR, FEROKE, KOZHIKODE DISTRICT-673631.** **IS IMPLEADED AS ADDITIONAL R2 AS PER THE ORDER DATED 20/02/2020 IN CRL.MA 2/2020.** **R2 BY ADV. SRI.K.P.SUDHEER** B.A.No. 382 OF 2020 2 ## **OTHER PRESENT:** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 382 OF 2020 3 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- B.A.No. 382 of 2020 ------------------------------Dated this the 8[th] day of September, 2020 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioners are accused in Crime No.560 of 2019 of Feroke Police Station. The above case is registered against the petitioners and others alleging offences punishable under Sections 120 B and 420 of the IPC. 3. The case is registered based on a private complaint filed by the defacto complainant before the jurisdictional court which was forwarded under Section 156 (3) of the Cr.P.C. B.A.No. 382 OF 2020 4 4. The prosecution case is that the accused persons dishonestly made the defacto complainant believe that accused No.3 and 4 were conducting working women's hostel in Hyderabad in high profits and they are intending to start such hostels all over India and if money is deposited in it, 2% profit on Rs.1 lakh would be received and hence the defacto complainant and his relatives together collected Rs.36 lakhs by withdrawing amount from various banks of Feroke and Ramanattukara and from foreign banks and deposited the amount in the account of the petitioners. It is the allegation of the prosecution that the amount is transferred through bank transactions. 5. Heard the counsel for the petitioners and the learned Public Prosecutor. The defacto complainant appeared through Adv. Sudheer. I heard the counsel for the defacto complainant. 6. The counsel for the petitioners submitted that even if the entire allegations are accepted, no offence B.A.No. 382 OF 2020 5 is made out. The counsel submitted that the defacto complainant invested certain amount in the business. It is a fact that the business collapsed. The counsel for the petitioners submitted that some amount is already transferred to the petitioners account as profit. The counsel submitted that Annexures C and D will show that some amount is transferred to the defacto complainant. The counsel submitted that even if the entire allegations are accepted, the offence under Section 420 IPC is not made out. 7. The counsel for the defacto complainant seriously opposed the bail application. The counsel submitted that huge amount is collected by the petitioners and the same is misappropriated by the petitioners. The counsel submitted that this is a clear case in which the offence under Section 420 IPC is made out. 8. The Public Prosecutor also opposed the bail application. The Public Prosecutor submitted that the B.A.No. 382 OF 2020 6 custodial interrogation of the petitioners are necessary. 9. After hearing both sides, I think, this bail application can be allowed on stringent conditions. The admitted prosecution case is that the defacto complainant invested certain amount in a business conducted by the petitioners and other accused. Subsequently, the business was collapsed. The amount invested or the profit was not paid to the defacto complainant. I do not want to make any observation about the merit of the case. Considering the entire facts and circumstances, I think this Bail Application can be allowed on stringent conditions. 10. 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 COVID19 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 B.A.No. 382 OF 2020 7 salutary directions for minimizing the number of inmates inside prisons. 11. Moreover, 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 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. 12. 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: 1. The petitioners shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. B.A.No. 382 OF 2020 8 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail executing a bond for a sum of Rs,.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned. 3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise 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. 4. Petitioners shall not leave India without permission of the Court. 5. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. B.A.No. 382 OF 2020 9 6. The petitioners 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. 7. Petitioners shall surrender their passports before the Investigating Officer. If there is no passport, they will file an affidavit to that effect before the Investigating officer. 8. If any of the above conditions are violated by the petitioners, 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** al/-