Sunil Stephen v. The State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 14TH DAY OF AUGUST 2020 / 23RD SRAVANA, 1942** ## **BAIL APPL.NO.2174 OF 2020** **CRIME NO.38/2020 OF KUDIYANMALA POLICE STATION , KANNUR** ## **PETITIONER:** **SUNIL STEPHEN AGED 43 YEARS S/O.ESTHAPPAN, CHIRAYIL HOUSE, RAMAPURAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT-686 576** **BY ADVS. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI SRI.M.M.VINOD SMT.M.SUSEELA SMT. KEERTHI B. CHANDRAN SHRI.VIJAYAN PILLAI P.K.** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA,**| ||**ERNAKULAM,**| ||**ERNAKULAM DISTRICT-682 031**| |**2**|**THE STATION HOUSE OFFICER,**| ||**KUDIYANMALA POLICE STATION,**| ||**THALIPARAMBU,**| ||**KANNUR DISTRICT–670 582**| |**3**|**MATHEW KUZHIVELIL**| ||**AGED 61 YEARS**| ||**S/O.JOSEPH, NEW NADUVIL DESOM AND AMSOM,**| ||**ARANGU.P.O,**| ||**THALIPARAMBU,**| B.A.NO.2174 OF 2020 2 ## **KANNUR DISTRICT-670582** ## **OTHER PRESENT:** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.NO.2174 OF 2020 3 ## **P.V.KUNHIKRISHNAN, J.** ## **================== B.A.No.2174 of 2020 ================== Dated this the 14[th] day of August, 2020** ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The petitioner is the accused in crime No. 38 of 2020 of kudiyanmala Police Station, Kannur District. The above case is registered against the petitioner and others alleging offences punishable under Section 420 read with Section 34 of the Indian Penal Code (IPC). The above case is registered based on a private complaint filed before jurisdictional Magistrate which was forwarded to the Police u/s 156(3) Cr.P.C. 3. The prosecution case is that, the petitioner and other accused collected an amount of Rs. 4,50,000/- from the defacto complainant for arranging a visa to Israel. B.A.NO.2174 OF 2020 4 The allegation is that the visa is not arranged and amount paid is also not returned. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that, there was some problem in arranging the visa and an agreement was entered between the petitioner and the other persons from whom the amount is collected. The petitioner produced Annexure A2 agreement. The petitioner is ready to return the amount. The learned counsel for the petitioner also submitted that, the petitioner is ready to abide any conditions, if this Court grants him bail. 6. The learned Public Prosecutor even though opposed the bail application, submitted that if this Court is granting bail stringent conditions may be imposed. 7. After hearing both sides, I think this bail application can be allowed. Admittedly, the petitioner and the other accused received some amount from the defacto B.A.NO.2174 OF 2020 5 complainant. It is also an admitted fact that the amount was paid for getting a visa to the defacto complainant. It is also an admitted fact that visa is not arranged and the money is not returned. Now the petitioner says that, he executed an agreement with the defa cto complainant and others, by which it is stated that, he is ready to return the amount. Whether in such a situation, an offence under section 420 IPC. is made out, is a matter to be investigated by the Investigating Officer in accordance with law. Considering the entire facts and circumstance of this case, I think this bail application can be allowed on stringent conditions. 8. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in _**Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)**_ and a Full Bench of this Court in _**W.P(C)No.9400 of 2020**_ issued various salutary directions for minimizing the B.A.NO.2174 OF 2020 6 number of inmates inside prisons. 9. Moreover, it is a well accepted principle that, the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in _**Chidambaram P. v. Directorate of Enforcement (2019 (16) SCALE 870),**_ after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that, the accused has the opportunity of securing fair trial. 10. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: _1. The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation;_ _2. After interrogation, if the Investigating_ _Officer proposes to arrest the petitioner, he shall_ B.A.NO.2174 OF 2020 7 _be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned;_ _3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise 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;_ _4. The petitioner shall not leave India without permission of the Court;_ _5. The petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected;_ _6. The petitioner shall strictly abide by the_ B.A.NO.2174 OF 2020 8 _various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic._ If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. **(Sd/-) P.V.KUNHIKRISHNAN, JUDGE** LU