High Court of KeralaSingle Judge2024-07-24Bail granted to the accused on stringent condit...

SHAJI v. STATE OF KERALA

Case / Petition Number:BA No.5817 of 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2024-07-24
Court Decision / Holding: The application is allowed. The petitioner Shaji is to be released on bail on a bond for Rs.50,000 with two solvent sureties of Rs.50,000 each, subject to conditions (i)-(vii) as set out in the order, including appearance before the investigating officer every Saturday, prohibition on tampering with witnesses or evidence, no offence while on bail, surrender of passport (or affidavit if none), and power to cancel bail on breach; the Investigating Officer may carry out recoveries even while on bail as permitted by law, following Sushila Aggarwal.
Final Disposition: Bail granted to the accused on stringent conditions.

Parties to the Case

Appellants / Petitioners

SHAJI

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
The Station House Officer, Kuthuparamba Police Station, Kannur District

Legal Representation & Advocates

Counsels for Petitioners

• Sri.M.Sasindran
• Sri.Satheeshan Alakkadan

Counsels for Respondents

• Smt.Neema T V

Case Synopsis & Summary

Shaji, petitioner/accused No.9 in Crime No. 444/2022 of Kuthuparamba Police Station, Kannur, moved Bail Application No. 5817/2024 under Sec. 483 of the Bharatiya Nagarik Suraksha Sanhitha, 2023, seeking bail in respect of offences including 406, 420, 201, and 204 read with Sec. 34 IPC; offences under the Prize Chits and Money Circulation Schemes (Banning) Act (3,4,5), Sec. 66D of the Information Technology Act, and Sec. 3 read with Sec. 21(1) of the BUDS Act. Arrested on 17 May 2024, the petitioner contends innocence, alleging false implication, and asserts he was merely an employee of the company named ‘My Club Trading,’ in which the 1st to 3rd accused were directors. The prosecution alleges a scheme to collect deposits from 8.7.2020 onwards, totalling about Rs. 2.086 crore, promising profits but failing to pay or return capital. The accused allegedly operated together; the 5th accused was granted bail in Annexure A IV. Counsel for the petitioner argued lack of criminal antecedents, 69 days in custody, and completion of the investigation in the petitioner’s portion, with recovery effected. The Public Prosecutor opposed bail, citing ongoing investigation and risk of reoffending. Citing Sanjay Chandra v. CBI and Dataram Singh v. State of U.P. and Article 21, the Kerala High Court finds a presumption of innocence and that bail is the general rule, with bail granted on stringent conditions: Rs.50,000 bond, two sureties, weekly appearances, no tampering, passport surrender or affidavit, and standard safeguards, including the possibility of early recoveries per Sushila Aggarwal v. State (NCT of Delhi).

Provisions of Law Cited

Sec.483 of Bharatiya Nagarik Suraksha Sanhitha, 2023Sections 406, 420, 201, 204 read with Sec.34 IPCSections 3, 4 and 5 of Prize Chits and Money Circulation Schemes (Banning) ActSec.66D of the Information Technology ActSec.3 read with Sec.21(1) of the BUDS ActArticle 21 of the Constitution of India

Legal Doctrines & Maxims

Presumption of innocence
Bail is the rule and jail is the exception

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that he is totally innocent and has been falsely implicated. He states he was merely an employee of the company run by the accused 1-3 and did not participate in the alleged scheme to cheat depositors. He has remained in judicial custody for 69 days; investigation concerning his role is purportedly complete and recoveries have been effected. The 5th accused has already been enlarged on bail by this Court in Annexure A IV, and the petitioner has no criminal antecedents. It is submitted that bail should be granted as a matter of right under Article 21 of the Constitution, and that the fear of public sentiment cannot override the presumption of innocence. The court is urged to exercise its discretion with compassion and in light of the principle that detention prior to conviction is an exceptional measure. The defense points to the lack of direct evidence linking the petitioner to the misappropriation, and argues that continuing detention would be punitive even before a trial. It is urged that appropriate robust conditions can ensure accountability without depriving him of liberty, particularly since the investigation relating to him is near completion and recovery has been effected.

Contentions of Respondents

The State opposed bail, arguing that the investigation is ongoing and that there is substantial likelihood of the accused engaging in similar offences if released. The de facto complainant's grievance involves a large sum of Rs. 2.086 crore raised from deposits from 8.7.2020, with profits promised but never paid, suggesting a continuing risk of reoffending and tampering with evidence. The petitioner’s role as an employee does not absolve him of responsibility given the scale of the alleged scheme and the involvement of directors. It is argued that safe-guarding public interest and maintaining the integrity of the ongoing investigation require detention until the final report is submitted. The State contends that custodial release could impede the investigation and frustrate the prosecution’s case, and that bail should be refused unless stringent conditions are imposed, if at all. The Prosecutor cites legal principles from Sanjay Chandra and Dataram Singh showing that bail is not a mere formality and that the court should weigh the facts and gravity of the offence.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Sanjay Chandra v. CBI	2012 1 SCC 40	Positive	Cited to reinforce presumption of innocence and principle that bail is a rule, pre-conviction detention is punitive.
Dataram Singh v. State of U.P	[(2018) 3 SCC 22]	Positive	Cited for the proposition that bail is the rule and jail is the exception; discretion must be exercised judiciously.
Sushila Aggarwal v. State (NCT of Delhi) and another	[2020 (1) KHC 663]	Positive	Cited to support the permissibility of recoveries by the Investigating Officer and other safeguards even while on bail.

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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 C.S.DIAS`** ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 BAIL APPL. NO. 5817 OF 2024 ``` ``` CRIME NO.444/2022 OF KUTHUPARAMBA POLICE STATION, KANNUR ``` ## **`PETITIONER/ACCUSED NO.9:`** ``` SHAJI AGED 54 YEARS S/O. SEKHARAN, MULLANKANDIYIL HOUSE, THALAKULATHOOR.P.O. NEAR ANGANAVADY, PANNIKKOT VAYAL, PURAKKATTRI, KOZHIKODE DISTRICT., PIN - 673303 ``` ``` BY ADVS. SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN ``` ## **`RESPONDENTS/STATE AND COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER, KUTHUPARAMBA POLICE STATION, KANNUR DISTRICT, PIN – 670643 ``` ## **`BY SR.PP.SMT.NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 2 BA No.5817 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.5817 of 2024** ## **-----------------------------------** ## **Dated this the 24[th] day of July, 2024** ## **O R D E R** The application is filed under Sec.483 of the Bharatiya Nagarik Suraksha Sanhitha, 2023 by the 9[th] accused in Crime No.444 of 2022 of the Kuthuparamba Police Station, Kannur, registered against the accused, for allegedly committing the offences punishable under Sections 406, 420, 201 and 204 read with Sec.34 of the Indian Penal Code, Secs.3,4 and 5 of Prize Chits and Money Circulation Schemes (Banning) Act, Sec.66D of the Information Technology Act and Sec.3 read with Sec.21(1) of the Banning of Unregulated Deposit Schemes Act, 2019 (BUDS Act). The petitioner was arrested on 17.5.2024. 2. The essence of the prosecution case is that: the accused, in furtherance of their common intention, 3 BA No.5817 of 2024 collected deposits from the de facto complainant from 8.7.2020 onwards on the assurance that they would give profit on the investment. They collected a total amount of Rs.2.086/- crore from the de facto complainant and deposited in the company named ‘My Club Trading’. However, the accused failed to pay any profit to the de facto complainant or return the capital. Thus, the accused have committed the above offences. 3. Heard: Sri.M.Sasindran, the learned counsel for the petitioner and Smt.Neema T.V, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner was only an employee of the above company. The petitioner has been in judicial custody for the last 69 days, the investigation in the case, so far as it relates to the petitioner, is complete and recovery has been effected. The 5[th] accused has been enlarged on bail by this Court as per Annexure A IV order. Moreover, the petitioner 4 BA No.5817 of 2024 does not have any criminal antecedents. Therefore, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. 6. The prosecution allegation against the accused is that, they cheated the de facto complainant by assuring him profit on making investment in their company. Even though the de facto complainant invested an amount of Rs.2.086/- crore, the accused failed to pay any profit or return the capital. The fact remains that the petitioner is only an employee of the accused 1 to 3, who are the Directors of the company named ‘My Club Trading’. The petitioner has been in judicial custody for the last 69 days, the investigation in the case is practically complete and recovery has been effected. Furthermore, the 5[th] accused has been enlarged on bail as per Annexure A IV order. 5 BA No.5817 of 2024 7. 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 as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 8. 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. 9. 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. The right to bail cannot be denied merely due to the sentiments of the society. 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed 6 BA No.5817 of 2024 on record, particularly taking into consideration the fact that the petitioner has been in judicial custody for the last 69 days, investigation in the case is complete and recovery has been effected and further that the petitioner does not have any criminal antecedents, and the 5[th] accused has been enlarged on bail by this Court as per Annexure A IV order, I am of the definite view that the petitioner is entitled to be released on bail. Hence, I am inclined to allow the bail application, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him 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 Officer on Investigating every Saturday between 9 a.m. and 11 a.m till the final report is 7 BA No.5817 of 2024 laid. He shall also 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 them 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; - (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for 8 BA No.5817 of 2024 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 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** NAB