Shahjahan Hameedh v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ``` BAIL APPL.NO.5398 OF 2024 ``` ``` CRIME NO.377/2024 OF Payyannur Police Station, Kannur ``` ``` ------------ ``` ## **`- PETITIONER :`** ``` SHAHJAHAN HAMEEDH, AGED 38 YEARS KADBEGURU MC THOLALU, KANDALIKE, HOBALI, HD KOTE, THALUKU, B MATAKERE, MYSURU, KARNATAKA, PIN – 571 114 ``` ``` BY ADVS. P.M.RAFEEK RADHIKA V.R. ``` ## **`- RESPONDENT :`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031 ``` ``` BY SRI.C.S.HRITHWIK, SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.5398 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 23rd day of July, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.377/2024 of the Payyannur Police Station, Kannur, which is registered against him, for allegedly committing the offence punishable under Section 420 of the Indian Penal Code. The petitioner was arrested and remanded to judicial custody on 17.05.2024. 2. The gist of the prosecution case is that; the accused, with an intention to cheat the de facto complainant, promised to secure an employment Visa for him to the United Kingdom and received Rs.2,78,000/from him. However, the accused failed to arrange the Visa or return the capital. Thus, the accused has committed the above offence. 3. Heard; Sri.P.M.Rafeek, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. ``` BAIL APPL.NO.5398 OF 2024 ``` ``` -: 3 :- ``` 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the offence under Section 420 of the IPC. In any given case, the petitioner has been in judicial custody for the last 62 days, the investigation in the case is complete and the final report has been laid. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, _inter alia,_ contending that the petitioner is a person with criminal antecedents since he is involved in sixteen other crimes registered by various police stations. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. Nonetheless, he did not ``` BAIL APPL.NO.5398 OF 2024 ``` ``` -: 4 :- ``` dispute the fact that the investigation in the case is complete and the final report has been laid. 6. The allegation against the petitioner is that; he cheated the de facto complainant by inducing him to pay Rs.2,78,000/- on the assurance of securing an employment in the United Kingdom. However, the accused failed to secure the employment or return the capital. The fact remains that the petitioner has been in judicial custody for the last 62 days, the investigation in the case is complete and the final report has been laid. 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 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 ``` BAIL APPL.NO.5398 OF 2024 ``` ``` -: 5 :- ``` as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 9. The principle that bail is the rule and jail is an exception is 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 in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 10. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last 62 days, the investigation in the case is complete and the final report has been laid, I am of the firm view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the application. In the result, the application is allowed, by directing the petitioner to be released on bail on him ``` BAIL APPL.NO.5398 OF 2024 ``` ``` -: 6 :- ``` executing a bond for Rs.50,000/- (Rupees Fifty thousand only) 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 :- - (i) The petitioner shall appear before the Investigating Officer as and when required; - (ii) The petitioner 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 him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (iii) The petitioner shall not commit any offence while he is on bail; - (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; ``` BAIL APPL.NO.5398 OF 2024 ``` ``` -: 7 :- ``` - (v) In case of violation of any of the conditions 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 filed and entertained before 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 petitioner even while the petitioner is 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** Jvt/23.7.2024 ``` BAIL APPL.NO.5398 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL.5398/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure A1A TRUE COPY OF THE ORDER DATED 18/6/2024 IN CMP NO. 4306/2024 OF JUDICIAL 1ST CLASS MAGISTRATE COURT; PAYYANNUR Annexure A2A TRUE COPY OF THE F.I.R IN CRIME NO. 377/2024 ```