Shameem P. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942** **Bail Appl.No.3163 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CC 54/2018 OF CHIEF JUDICIAL MAGISTRATE, KOTTAYAM** **CRIME NO.1161/2016 OF Kottayam East Police Station, Kottayam** ## **PETITIONER/ACCUSED:** **SHAMEEM.P AGED 30 YEARS, OCC.BUSINESS, S/O. IBRAHIM KULATHINKAL VEEDU, KAMMADAM BHAGAM, PARAPPA P.O, PARAPPA KARA, PARAPPA VILLAGE, KASARGOD DISTRICT.** **BY ADVS. SRI.BIJU ANTONY ALOOR SRI.K.P.PRASANTH SMT.T.S.KRISHNENDU SMT.MEENU THAMPI** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI -18. 2 THE STATION HOUSE OFFICER, KOTTAYAM EAST POLICE STATION, KOTTAYAM.** ## **OTHER PRESENT:** ## **SRI.SUMAN CHAKRAVARTHY, SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03.03.2020, ALONG WITH Bail Appl.3243/2020, THE COURT ON 30.06.2020 PASSED THE FOLLOWING:** B.A.Nos. 3163 & 3243 of 2020 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942** **Bail Appl..No.3243 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CC 1/2019 OF CHIEF JUDICIAL MAGISTRATE ,KOTTAYAM CRIME NO.1641/2018 OF Kottayam East Police Station , Kottayam** ## **PETITIONER/ACCUSED:** **SHAMEEM P. AGED 30 YEARS, OCC. BUSINESS, S/O. IBRAHIM KULATHINKAL VEEDU, KAMMADAM BHAGAM, PARAPPA P.O, PARAPPA KARA, PARAPPA VILLAGE, KASARAGOD DISTRICT.** **BY ADVS. SRI.BIJU ANTONY ALOOR SRI.K.P.PRASANTH** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI – 18.** **2 THE STATION HOUSE OFFICER, KOTTAYAM EAST POLICE STATION, KOTTAYAM.** ## **OTHER PRESENT:** **SRI.SUMAN CHAKRAVARTHY, SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03.03.2020, ALONG WITH Bail Appl.3163/2020, THE COURT ON 30.06.2020 PASSED THE FOLLOWING:** B.A.Nos. 3163 & 3243 of 2020 -3- ## **COMMON ORDER** ## **[ Bail Appl.3163/2020, Bail Appl.3243/2020 ]** **Dated this the 30th day of June 2020** Applications for regular bail under Section 439 of the Cr.P.C. 2. The petitioner is the accused in two crimes for offences punishable under Sections 406, 465, 468, 471, 419 and 420 of the I.P.C. B.A.No.3163/2020 arises out of Crime No.1161/2016 of Kottayam East Police Station, presently pending before the Court of the Chief Judicial Magistrate, Kottayam as C.C.No.54/2018 and B.A.No.3243/2020 arises out of Crime No.1641/2018 of the same police station and pending before the aforesaid Court as C.C.No.1/2019. 3. The prosecution case in brief is thus: The petitioner had dishonestly induced CW1 to deliver a sum of Rs.4,39,000/- (Rupees four lakh thirty nine thousand only) promising him to provide a job as a Bill Collector and also received a Maruti Swift car, from him for travelling to the Airport, which was never ## B.A.Nos. 3163 & 3243 of 2020 -4- returned to him and dishoenstly induced CWs2, 3, and 4 to deliver a sum of Rs.6,39,000/- (Rupees six lakh thrity nine thousand only) each, promising to arrange for jobs as Doctors to the daughters of CW2 and 4 and to CW3 in the Railway Hospital and induced CW5 to deliver a sum of Rs.11,48,625/- (Rupees eleven lakh fortyeight thousand six hundred and twenty five only) to provide him a job of a Doctor in the Railway Hospital and induced CW6 to deliever a sum of Rs.4,77,250/- (Rupees four lakh seventy seven thousand two hundred and fifty only) to provide job of a Ticket Collector and induced Cws.7 and 8 to deliver a sum of Rs.5,05,625/- (Rupees five lakh five thousand six hundred and twenty five only) each to provide job as Nurses in the Railway Hospital and promised CW1 in C.C.No.1/2019 to deliver a sum of Rs.2,93,000/- (Rupees Two lakh ninety three thousand only) offering him the job of Train Ticket Examiner and also conducted an OMR tests and issued forged appointment orders purporting to be that of Railway Recruitment Board, impersonating himself as the Chief Examination Officer of the Board B.A.Nos. 3163 & 3243 of 2020 -5- and cheated them and also committed criminal breach of trust by misappropriating and forgery for the purpose of cheating. 4. The petitioner was granted bail at the crime stage in Crime No.1161/2019, but therafter, absconded and did not respond to the summons of the non-bailablle warrants. In the meanwhile, he was apprehended in another Crime No.725/2019 for offence punishable under Section 420 read with Section 34 of I.P.C. and was remanded to the Irinjalakuda Sub Jail. The learned Chief Judicial Magistrate issued production warrant and thus the petitioner was produced before the said Court on 05.12.2019 and remanded to judicial custody. 5. The petitioner filed C.M.P.Nos.5319/2019 and 5390/2019 for bail under Section 437 of Cr.P.C in C.C.Nos.54/2018 and 1/2019 respectively. Vide common order dated 12/12/2019, the learned CJM dismissed the applications for bail. The petitoner appraoched the Sessions Court, Kottayam by filing Crl.M.P (Temp) Nos.14 and 15 of 2020 seeking bail under Section 439 of Cr.P.C and failed in obtaining a favourable order. ## B.A.Nos. 3163 & 3243 of 2020 -6- Therafter, the petitioner apprached this court by filing B.A.(TMP) Nos.282 and 244 of 2020 seeking bail in both these cases and those applications were also dismissed. 6. The petitioner, therefore, files these applications seeking bail again from this court. The petitioner contends that his applications are to be allowed in view of the Full Bench decision of this Court in W.P.(C) No.9400/2020, wherein this Court has held that bail is to be liberally granted as a rule, particularly, in cases concerning offences punishable with imprisonment upto seven years, with or without fine. The Hon'ble Appex Court has also directed grant of bail to all undertrial prisoners in view of COVID-19 pandemic prevailing in the Country, so as to decongest the jails and prevent spreading of the disease. 7. I heard the learned Counsel for the petitioner, Shri B.A.Aloor and the Senior Public Prosecutor Shri Suman Chakravarthy for the State. 8. The learned Counsel for the petitioner submits that the petitioner is innocent and has been falsely ## B.A.Nos. 3163 & 3243 of 2020 -7- implicated in the cases. His family is depending on him, being the sole breadwinner for the family. The learned Counsel also seeks indulgence of this Court in ivoking the lineant provisons of the bail so as to release him, considering the pandemic situation. 9. _Per Contra,_ Shri Suman Chakravarthy submits that the petitioner is a person, who has eight criminal cases registered against him. In Crime No.1161/2016 he has allegedly cheated eight persons and recieved huge amounts from them. In Crime No.1641/2018 the petitoner had taken CW1 therein to Global Institute of Supply Management making him believe that it was the Institute of Railway Recruitment Board, Bangalore. He even conducted false OMR tests for all the aforesaid persons and issued false appointment orders to weach one of them, forging documents, so as to make it appear that those documents were issued by the Railway Recruitment Board. The petitioner himself had impersonated as the Chief Examination Officer of the Railway Recruitment Board. 10. The propensity of the petitioner to forge ## B.A.Nos. 3163 & 3243 of 2020 -8- documents in accordance to his conveneinece is substantiated further by his producing forged tax receipts purpotedly issued by the Village Officer of Nellanad, Nedumangad, in order to secure bail in Crime No.1161/2016 from the Court of the CJM by producing persons impersonating as sureties having valid tax receipts and properties. 11. Deprivation of personal liberty by procedure established by law is permissable. A person accused of offences, which are non-bailable, is liable to be detained in custody during the pendancy of trial; unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution; since it is authorised by law. Even though principles of _Res Judicata_ is not applicable to criminal cases, successive bail applications is maintainable only when the accused could establish change in circumstances sufficient to persuade the Court to invoke the bail jurisdiction which was earlier disallowed (See _**Kalyan**_ _**Chandra Sarkar v. Pappu Yadav, 2005 KHC 604 SC**_ ). B.A.Nos. 3163 & 3243 of 2020 -9- ## 12. In _**Chidambaram P. v. CBI, AIR 2019 SC 5272,**_ the Hon'ble Supreme Court has observed that bail in matters concerning serious financial fraud cannot be granted when there is reasonable apprehension that there is a likelihood of tampering with evidence or threat to witnesses. Reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondance, character, behaviour and standing of the accucsed and the circumstances which are peculiar to the accused and the larger interest to the public are matters to be considered while granting bail. 13. While Article 21 of the Constitution is of great importance, a balance must be struck between right of liberty of the person accused of an offence like cheating and the interest of the society. No right can be absolute and reasonable restrictions can be placed on the exercise of the rights. The petitoner has duped a number of persons by posing himself as an officer of Railway Recruitement Board and dishonestly induced them to deliver huge sums of money offering B.A.Nos. 3163 & 3243 of 2020 -10- jobs to them in the Indian Railways. He has absconded of being released on bail during the crime stage and was apprehended subsequently in yet another case of cheating in Irinjalakuda. Later on, it has also come to light that the petitioner has produced fictitious sureties with forged basic tax receipts with the premeditated intention to abscond playing fraud even upon the Court. There is no assurance that the petitioner may not abscond again and get involved in offences of similar nature. The bail applications, therefore, deserve to be dismissed, and I do so. **Sd/-** _dkr_ **ASHOK MENON** **JUDGE**