Shamseer Khan v. State of Kerala

1 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 BAIL APPL. NO. 3286 OF 2024 ``` ``` CRIME NO.2343/2023 OF Thrikkakara Police Station, Ernakulam PETITIONER/S: ``` ``` SHAMSEER KHAN AGED 31 YEARS S/O. UMMER, PALAKKAL HOUSE, H. NO. 532, PATTANI STREET, PALAKKAD, PIN - 678014 ``` ``` BY ADV SHABU SREEDHARAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` OTHER PRESENT: ``` ``` Sr pp Smt Neema T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024 ALONG WITH BA NOS 3307, 3308, 3311, 3315 OF 2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 BAIL APPL. NO. 3307 OF 2024 ``` ``` CRIME NO.2378/2023 OF Thrikkakara Police Station, Ernakulam PETITIONER/S: ``` ``` SHAMSEER KHAN AGED 31 YEARS S/O. UMMER, PALAKKAL HOUSE, H. NO. 532, PATTANI STREET, PALAKKAD, PIN - 678014 ``` ``` BY ADV SHABU SREEDHARAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr pp Sri C.S Hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024 ALONG WITH BA NOS 3286, 3308, 3311, 3315 OF 2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 BAIL APPL. NO. 3308 OF 2024 ``` ``` CRIME NO.2381/2023 OF Thrikkakara Police Station, Ernakulam PETITIONER/S: ``` ``` SHAMSEER KHAN AGED 31 YEARS S/O. UMMER, PALAKKAL HOUSE, H. NO. 532, PATTANI STREET, PALAKKAD, PIN - 678014 ``` ``` BY ADV SHABU SREEDHARAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Smt Neema T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024 ALONG WITH BA NOS 3307, 3286, 3311, 3315 OF 2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 4 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 BAIL APPL. NO. 3311 OF 2024 ``` ``` CRIME NO.2390/2023 OF Thrikkakara Police Station, Ernakulam PETITIONER/S: ``` ``` SHAMSEER KHAN AGED 31 YEARS S/O. UMMER, PALAKKAL HOUSE, H. NO. 532, PATTANI STREET, PALAKKAD, PIN - 678014 ``` ``` BY ADV SHABU SREEDHARAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Sri C.S Hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024 ALONG WITH BA NOS 3307, 3308, 3286, 3315 OF 2024,, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 BAIL APPL. NO. 3315 OF 2024 ``` ``` CRIME NO.2417/2023 OF Thrikkakara Police Station, Ernakulam PETITIONER/S: ``` ``` SHAMSEER KHAN AGED 31 YEARS S/O. UMMER, PALAKKAL HOUSE, H. NO. 532, PATTANI STREET, PALAKKAD, PIN - 678014 ``` ``` BY ADV SHABU SREEDHARAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Sri C.S Hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024 ALONG WITH BA NOS 3307, 3308, 3311, 3286 OF 2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 6 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 ## **C.S.DIAS,J** **====================== BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024** **-----------------------------------** **Dated this the 23[rd] day of April, 2024** ## **COMMON ORDER** These applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime Nos.2343, 2378, 2381, 2390 and 2417 of 2023 all of the Thrikkakkara Police Station, Ernakulam, registered against the accused, for allegedly committing the offences punishable under Sections 406, 420, 465 and 471 read with Sec.34 of the Indian Penal Code. As the petitioner is same in all the applications, they are consolidated, jointly heard and are being 7 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 disposed of by this common order. The petitioner was arrested on 14.3.2024. 2. The common prosecution case, in brief, in the five crimes is that: the accused in furtherance of their common intention, to cheat the defacto complainants and their friends, induced them to pay money on the false assurance of securing them employment in New Zealand. However, the accused failed to secure the employment. Instead, the accused fabricated visas and flight tickets and gave them to the victims. They also refused to return the money. Thus, the accused have committed the above offences. 3. Heard; Sri.Shabu Sreedharan, the learned counsel appearing for the petitioner and the learned Public Prosecutors. 8 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 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 crimes. The petitioner was only working as a co-ordinator in a travel agency named, ‘M/s.Eurofly Holidays’. The entire money paid by the victims was transferred to the proprietor of the said travel agency. In fact, the petitioner himself is a victim because he has not been paid his salary for the months of September to November, 2023. The petitioner had resigned his job and gone abroad. Later, when he returned to Delhi, he was arrested on 14.3.2024. The petitioner is totally unaware of the transactions, issuing of fake visas and air tickets. In any given case, the petitioner has been in judicial custody since 14.3.2024, which is nearly forty days. The third accused has already been enlarged on bail by the Court of Session as 9 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 per Annexure-2 order. The investigation in the case, so far as it relates to the petitioner, is practically complete and recoveries have been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the applications may be allowed. 5. The learned Public Prosecutors seriously opposed the applications. They submitted that the investigation in the case is still in progress. They contended that the accused have siphoned off nearly Rs.1.25/- crore from the victims. There is a likelihood of several other victims also being cheated by the accused. If the petitioner is enlarged on bail, there is a possibility of him tampering with the evidences, intimidating witnesses and also fleeing from justice. Therefore, the applications may be dismissed. 10 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 6. The gravamen of the prosecution allegation is that the accused, to make unlawful gain and to defraud and cheat the de facto complainants and their friends, received money from the victims ranging from Rs.5/- Lakh to Rs.15/- Lakh on the assurance of securing them employments in New Zealand. However, the accused failed to secure the employments. Instead, the accused gave fabricated visas and air tickets to the victims and cheated them. They also failed to return the money received from the victims. 7. The defence of the petitioner is that he was only a paid employee in ‘M/s.Eurofly Holidays’. It was the proprietor of the said travel agency who received the entire consideration and issued the fabricated documents. The petitioner was also not paid his salary and he was compelled to resign his job. The fact remains that the petitioner has been in 11 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 judicial custody since 14.3.2024, which is nearly forty days and the third accused in the crime has already been enlarged on bail by the Court of Session as per Annexure-2 order produced in the applications. 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 as a punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 9. 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 12 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 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. 10. Subsequently, in **State of Kerala v. Raneef,** [(2011) 1 SCC 784], the Honourable Supreme Court has again held that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. 11. On an overall consideration of the facts, the materials placed on record, the rival submissions made across the Bar and on particularly comprehending the fact that the petitioner has been in judicial custody for nearly forty days, the investigation in the case is practically complete, the third accused has already been enlarged on bail and recovery has 13 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 been effected, I am of the definite view that the petitioner’s further detention is not necessary. Hence, I am inclined to allow the bail applications, but subject to stringent conditions: In the result, the applications are allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) in all the crimes 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 on every Tuesday and Friday between 9 a.m. and 11 a.m till the final reports are laid in all the crimes. 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 14 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 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 in crime No.2343/2023. 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) The petitioner shall not leave the State of Kerala without the previous permission of the jurisdictional court. (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered 15 BA Nos.3286, 3307, 3308, 3311 and 3315 of 2024 to consider the application for cancellation of 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 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/- sks/23.4.2024 **C.S.DIAS, JUDGE**