VIGAS v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 24[TH] DAY OF MAY 2024 / 3RD JYAISHTA, 1946** **BAIL APPL. NO. 4129 OF 2024** **CRIME NO.4/2024 OF CYBER CRIME POLICE STATION, KOLLAM CITY, Kollam PETITIONER/S:** **VIGAS, AGED 44 YEARS S/O VIJAYAN, VELLUNNIPPARAMBIL HOUSE, NEAR NSS SCHOOL, CHALAKKUDY, THRISSUR, PIN - 680307** **BY ADVS. GAYATHRI MURALEEDHARAN SANJU K. SIVAN ARATHY P. ANJANA S. RAJ** **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031** **SRI.C.S.HRITHWIK, SR.PP.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 4129 OF 2024 2 ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 2[nd] accused in Crime No.4/2024 of the Cyber Crime Police Station, Kollam City, Kollam, registered against the accused for allegedly committing the offences punishable under Sections 419 and 420 of the Indian Penal Code( in short, 'IPC') and Sections 66C and 66D of the Information Technology Act. The petitioner was arrested on 05.04.2024. 2. The crux of the prosecution allegation is that: the accused used a Facebook advertisement and solicited investors to invest in stocks. On the basis of the said advertisement, the defacto complainant invested an amount of Rs.31,57,500/- between the period from 01.01.2024 to 06.02.2024 with the accused. However, the accused failed to pay any profit or return the capital. The fact remains that the petitioner has been in judicial custody for the last 50 days, the investigation in the case BAIL APPL. NO. 4129 OF 2024 3 is practically complete and recovery has been effected. Thus, the accused have committed the above offences. 3. Heard; Smt.Gayathri Muraleedharan, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. A reading of the FIR would substantiate that the offences under Sections 419 and 420 would not be attracted. 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. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. He submitted that the investigation in the case is in progress. If the petitioner BAIL APPL. NO. 4129 OF 2024 4 is released on bail, there is every likelihood of him interfering with the investigation. Hence, the application may be dismissed. However, he conceded to the fact that the petitioner has been in judicial custody for the last 50 days and the investigation is almost complete. 6. The crux of the prosecution allegation is that the accused, through a Facebook advertisement, induced the defacto complainant to invest Rs.31,57,500/-, between the period from 01.01.2024 to 06.02.2024, on the assurance of giving huge profit. However, the accused failed to pay any profit or return the capital. 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. 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 BAIL APPL. NO. 4129 OF 2024 5 guilty. Any imprisonment prior to conviction is to be considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 8. In **State of Kerala v. Raneef,** [(2011) 1 SCC 784], the Honourable Supreme Court has declared 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. 9. 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. BAIL APPL. NO. 4129 OF 2024 6 10. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially taking into account 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. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) 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 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; BAIL APPL. NO. 4129 OF 2024 7 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 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. BAIL APPL. NO. 4129 OF 2024 8 vi. Application 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/- ## **C.S.DIAS,JUDGE** rkc/24.05.24 BAIL APPL. NO. 4129 OF 2024 9 ## **APPENDIX OF BAIL APPL. 4129/2024** ## **PETITIONER ANNEXURES** **Annexure A1 THE TRUE COPY OF THE FIR IN CRIME NO: 4 OF KOLLAM CITY CYBER POLICE STATION DATED 23.02.2024** **Annexure A2 THE TRUE COPY OF THE REMAND REPORT OF THE PETITIONER DATED 05.04.2024 ISSUED BY SHO, KOLLAM CITY CYBER POLICE STATION Annexure A3 THE TRUE COPY OF THE SSLC CERTIFICATE ISSUED BY THE GOVT. OF KERALA IN THE NAME OF THE PETITIONER DATED NIL Annexure A4 THE TRUE COPY OF THE ORDER DATED 09.05.2024 IN CRL.MC 768 OF 2024 OF SESSIONS, COURT KOLLAM**