High Court of KeralaSingle Judge2024-07-24Bail granted

Shone Babu and Jyotsna Visudh v. State of Kerala and Muhammed Ali

Case / Petition Number:BAIL APPL. NO. 4386 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 petition is allowed. Pre-arrest bail is granted to the petitioners subject to conditions including surrender before the IO within 10 days, furnishing bonds with two solvent sureties of Rs. 50,000 each, appearing for interrogation as directed, not inducing or tampering with witnesses, surrendering passports (or filing affidavits if none), abstaining from other offences, and compliance with further orders and possible cancellation on violation. The order also clarifies that the observations are for the purpose of considering the application and do not reflect on merits.
Final Disposition: Bail granted

Parties to the Case

Appellants / Petitioners

Shone Babu
Jyotsna Visudh

Respondents

State of Kerala represented by Public Prosecutor
Sri Muhammed Ali, S/o Yousuff

Legal Representation & Advocates

Counsels for Petitioners

• Sri Jaju Babu (Senior Advocate)
• M. U. Vijayalakshmi
• Brijesh Mohan

Counsels for Respondents

• Smt Neema T V, Senior Public Prosecutor

Case Synopsis & Summary

This is a pre-arrest bail application under Section 438 CrPC filed by Shone Babu and Jyotsna Visudh, accused in Crime No. 538/2023 of Infopark Police Station, Ernakulam, alleging offences under Sections 406 and 420 read with Section 34 IPC. The High Court considered whether the petitioners warrant custodial custody or can be released on pre-arrest bail while the investigation proceeds. The prosecution contends that there are incriminating materials and that grant of pre-arrest bail would hinder the investigation. The petitioners contend their innocence, noting that the alleged transaction occurred in August–September 2022, whereas the FIR was registered only on 21 April 2023, and that the de facto complainant’s son was admitted and provided with materials; the complainant’s current demand for non-refundable admission fees suggests improper motive. It is argued that the petitioners cooperated with the investigation, evidenced by Annexures A2 and A3. The court had earlier referred the matter to mediation on 11 July 2024, but no settlement ensued. On evaluating Annexure A1 FIR, A2 notice and A3 reply, the court found the central issue to be non-provision of syllabus and failure to commence classes rather than admission denial, and that relevant materials support a bail grant. The order grants pre-arrest bail, with conditions including surrender within 10 days, bond and sureties, cooperation, no tampering with witnesses, passport surrender, and compliance with other conditions, while noting the merits will be decided later."

Provisions of Law Cited

Section 438 of the Code of Criminal Procedure, 1973Sections 406 and 420 r/w Section 34 of the Indian Penal Code

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend their innocence and point to the delay between the alleged transaction in 2022 and registration of the FIR in 2023, along with their cooperation with the investigation. They assert the admission was granted and materials supplied, but the student dropped out. They argue custodial interrogation is unnecessary, there is no recovery sought, and the purposes of the investigation can be achieved without arrest. They emphasize that mediation was attempted, and the defacto complainant’s demand for exorbitant sums undermines the case value. The petitioners pray for pre-arrest bail, coupled with conditions to ensure cooperation and non-tampering with evidence.

Contentions of Respondents

The State argues there are incriminating materials linking the petitioners to offences under Sections 406 and 420 r/w 34 IPC. Granting pre-arrest bail could impede investigation and recovery. The prosecution highlights the timing of the FIR, notices to the school authorities, and the need for custodial interrogation to ascertain the evidence and the location of assets or assets’ recovery. Public interest and the integrity of the investigation are stressed, justifying continued arrest if necessary.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) And another	2020 (1) KHC 663	Positive	Quoted to support the principle that investigation and recoveries can proceed even during bail; used to justify permissible investigative actions while bail is in place.

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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. 4386 OF 2024 ``` ``` CRIME NO.538/2023 OF INFOPARK POLICE STATION, ERNAKULAM ``` ## **`PETITIONERS/ACCUSED 1 AND 2:`** ``` 1SHONE BABU, AGED 32 YEARS S/O.BABU,FLAT NO.147, BLOCK -I, GREEN VISTAS, PRAKRITI APARTMENTS, KAKKANAD,ERNAKULAM, PIN - 682030 ``` - **`2 JYOTSNA VISUDH, AGED 52 YEARS W/O.VISUDH,FLAT NO.9-D, FORT ORION APARTMENTS, KAKKANAD, ERNAKULAM, PIN - 682030`** ``` BY ADVS. SR ADV SRI JAJU BABU M.U.VIJAYALAKSHMI BRIJESH MOHAN ``` ## **`RESPONDENTS/STATE/DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2SRI.MUHAMMED ALI, S/O YOUSUFF, HOUSE OF SHA, 5/301, AKG ROAD,KORATTIKKARA.P.O, KODAVALLOOR, THRISSUR, PIN - 680543 ``` ``` BY SMT NEEMA T V SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.4386 of 2024 -:2:- Dated this the 24[th] day of July, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 2 in Crime No. 538/2023 of the Infopark Police Station, Ernakulam, registered against them for allegedly committing the offences punishable under Sections 406 and 420 r/w Section 34 of the Indian Penal Code. 3. The essence of the prosecution allegation is that; on 24.08.2022, the de facto complainant had paid Rs. 25,000/-, and on 03.09.2022, he paid Rs. 1/- lakh for the purpose of securing an admission for his son in International School of Creative Arts (ISCA), where the accused are the Director and Manager, respectively. ISCA is having the affiliation of Liverpool John-Moores University (LIMU). Even though the B.A.No.4386 of 2024 -:3:- amount was paid, the classes were not conducted as per the syllabus, and the syllabus was not handed over to the de facto complainant’s son. Thus, the accused have committed the above offences. 4. Heard; Sri.K. Jaju Babu, the learned Senior counsel appearing for the petitioners and Smt. Neema. T.V, the learned Public Prosecutor. 5. When the bail application came up for consideration on 11.07.2024, this Court, considering the rival submissions made across the Bar, referred the parties to mediation. However, it is reported that the matter has not been settled since the defacto complainant sought exorbitant money from the petitioners. 6. The learned Senior counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of the allegations in Annexure A1 FIR would undoubtedly substantiate that none of the offences alleged against B.A.No.4386 of 2024 -:4:- the petitioners are attracted. In fact, the alleged transaction took place as early as on 24.08.2022, but the crime was registered only on 21.04.2023. Moreover, the defacto complainant’s son was given admission and provided with the materials, as assured by the petitioners. But, he dropped out of the studies. The defacto complainant’s intention is now to get back the non-refundable admission fees. The petitioners are law-abiding citizens and run an international school. The petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 7. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate the petitioners' involvement in the crime. If the petitioners are granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. 8. On an overall scrutiny of the materials on B.A.No.4386 of 2024 -:5:- record, it can be gathered that the principal allegation is that even though the defacto complainant paid the fees, his son was not provided with the syllabus, and classes did not commence as assured by the petitioners. The defacto complainant has no case that the petitioners did not give admission for his son. Even though the alleged transaction took place in the year 2022, Annexure A1 FIR is registered only on 21.04.2023. In addition to the same, the Investigating Officer had issued Annexure A2 notice to the Head of the Administration of the petitioners’ institution, and Annexure A3 reply was given. Therefore, it is seen that the petitioners have cooperated with the investigation. 9. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly after going through the allegations in Annexure A1 FIR, Annexure A2 notice issued to the petitioners and Annexure A3 reply furnished by them, I am satisfied that the B.A.No.4386 of 2024 ## -:6:- petitioners have made out valid grounds entitling them to an order of pre-arrest bail. Hence, I am inclined to pass an order of pre-arrest bail, subject to the condition that the petitioners cooperate with the Investigating Officer. In the result, the application is allowed subject to the following conditions: - (i) The petitioners are directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioners’ arrest, the Investigating Officer shall release the petitioners on bail on their executing a bond for Rs.50,000/(Rupees fifty thousand only) each with two solvent sureties for the like amount each; - (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioners shall not directly or indirectly make any inducement, threat or procure to any B.A.No.4386 of 2024 -:7:- 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; - (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passports, they shall file affidavits to the effect before said court within the said period; - (vi)The petitioners shall not get involved in any other offence while on bail; - (vii) 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. - (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. -:8:- ## B.A.No.4386 of 2024 - (ix) 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 petitioners even while the petitioners are 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]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- ## **C.S.DIAS, JUDGE** mtk/24.07.24