Soby George v. State of Kerala

1 BA No.3677 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946 BAIL APPL. NO. 3677 OF 2024 ``` ``` CRIME NO.1363/2023 OF Kalamassery Police Station, Ernakulam ``` ## **`PETITIONER/S:`** ``` SOBY GEORGE, AGED 55 YEARS S/O. KORAH GEORGE, KAKKANADU(H) NELLIMUTTAM, KOTHAMANGALAM, ERNAKULAM, PIN - 686693 ``` ``` BY ADVS. G.HARIHARAN PRAVEEN.H. K.S.SMITHA B.R.SINDU V.R.SANJEEV KUMAR V.ROHITH AFNA V.P. ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER, KALAMASSERRY POLICE STATION SOUTH KALAMASSERY, CHANGAMPUZHA NAGAR P O, THRIKKAKKARA NORTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM, PIN - 682033`** ## **`OTHER PRESENT:`** ``` Sr PP Smt Neema T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.3677 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.3677 of 2024** ## **-----------------------------------** ## **Dated this the 23rd day of May, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.1363/2023 of the Kalamasserry Police Station, Ernakulam, registered against him, for allegedly committing the offences punishable under Secs. 406 and 420 of the Indian Penal Code. The petitioner was arrested on 3.4.2024. 2. The essence of the prosecution case is that: the accused, with an intention to make an unlawful gain and cheat the de facto complainant, received an amount of Rs.3,89,000/-, between the period from 23.7.2020 to 18.6.2022, through google pay from the de facto complainant on the false assurance that he would arrange a job for his son. However, 3 BA No.3677 of 2024 the accused did not arrange the job or return the amount. Thus, the accused has committed the above offences. 3. Heard; Sri.G.Hariharan, the learned counsel appearing 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 leveled against him. A reading of Annexure-1 FIR would substantiate that the offences will not be attracted. The very fact that the alleged transaction took place on 23.7.2020 and Annexure-1 FIR was registered only on 4.7.2023, proves the falsity in the crime. In any given case, the petitioner has been in judicial custody for the last 50 days, the investigation in the case is practically complete and recovery has been effected. Hence, the petitioner’s further detention is unnecessary. Therefore, the application may be allowed. 4 BA No.3677 of 2024 5. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner is a person with criminal antecedents since he is involved in eleven other cases of similar nature. If the petitioner is enlarged on bail, there is every likelihood of him committing similar offences. Hence, the application is dismissed. 6. The prosecution allegation against the petitioner is that he received an amount of Rs.3,89,000/- from the de facto complainant on the assurance that he would secure an employment for the de facto complainant’s son in Switzerland. However, he did not secure the employment or return the money. The fact remains that the petitioner has been in judicial custody for the last 50 days, the investigation in the case is practically complete and recovery has been effected. 7. It is well settled in **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], that merely because 5 BA No.3677 of 2024 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 considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 9. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 6 BA No.3677 of 2024 10. 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. 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. 11. On an anxious consideration of the facts, the materials placed on record and the rival submissions made across the Bar, especially considering the fact that the petitioner has been in judicial custody for the last 50 days, that the investigation in the case is complete and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. 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.1,00,000/- (Rupees One Lakh only) with two solvent 7 BA No.3677 of 2024 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 Saturday between 9 a.m. and 11 a.m till the final report is 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 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 8 BA No.3677 of 2024 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 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/- sks/23.5.2024 **C.S.DIAS, JUDGE**