V.K. Muhammed Irfan v. State of Kerala and The Station House Officer, Cyber Crime Police Station, Ernakulam Rural

## **`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. 2946 OF 2024 ``` ``` CRIME NO.04/2024 OF CYBER CRIME POLICE STATION, ERNAKULAM PETITIONER/S: ``` ``` V.K.MUHAMMED IRFAN, AGED 21 YEARS S/O. EASSAKUTTY, DARUL FALAH, EDAYANNUR, MATTANNUR. P.O, KANNUR DISTRICT, PIN - 670702 ``` ``` BY ADVS. CIBI THOMAS ANSIA K.A. AISHWARYA SHIVAKUMAR ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER, CYBER CRIME POLICE STATION,ERNAKULAM RURAL,ERNAKULAM DISTRICT, PIN - 682039`** ## **`OTHER PRESENT:`** ``` Sr PP Smt Neema T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No. 2946 of 2024 ## **C.S.DIAS,J** ## **======================** ## **Bail Application No. 2946 of 2024** **-----------------------------------** ## Dated this the 23[rd] day of April, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.04/2024 of the Cyber Crime Police Station, Ernakulam, registered against the accused, for allegedly committing the offences punishable under Section 420 r/w Section 34 of the Indian Penal Code and Section 66D of the Information Technology Act. The petitioner was arrested on 24.02.2024. 2. The essence of the prosecution case is that; the accused, in furtherance of their common intention, to make unlawful gain for them and wrongful loss to the de facto complainant, called him on his mobile number and assured him of huge profit if he invested in an American Company named, ‘Black Rock’, wherein the accused are promoters. 3 Bail Application No. 2946 of 2024 Accordingly, the accused made the de facto complainant transfer Rs.49,95,047.20/- on different occasions. The second accused had sent the account details of the other accused and the above amount was transferred to different accounts. Thus, the accused have committed the above offences. 3. Heard; Sri.Cibi Thomas, the learned counsel appearing for the petitioner and Smt.Neema T.V, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of Annexure-I FIR would substantiate that the above offence will not be attracted in the facts of the case. In any given case, the petitioner has been in judicial custody since 24.2.2024, 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. 4 Bail Application No. 2946 of 2024 5. The learned Public Prosecutor opposed the application. She submitted that investigation in the case is in progress. It was the petitioner who transferred the money that was received from the de facto complainant to different accounts. If the petitioner is released on bail at this stage, it would certainly hamper with the investigation. Hence, the application may be dismissed. 6. On an evaluation of the materials placed on record, it can be gathered that the accused with the common intention to cheat the de facto complainant had induced him to transfer Rs.49,95,047.20/- to different accounts of the accused. The accused did not pay any profit to the de facto complainant or return the capital amount. The fact remains that the petitioner has been in judicial custody for the last sixty 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 guilty. Any 5 Bail Application No. 2946 of 2024 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 **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 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. 9. 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. 10. 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 6 Bail Application No. 2946 of 2024 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. 11. 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. 12. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into consideration the fact that the petitioner has been in judicial custody for the last 60 days, 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 7 Bail Application No. 2946 of 2024 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; (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. 8 Bail Application No. 2946 of 2024 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. (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** 9 Bail Application No. 2946 of 2024 ## **Aggarwal v. State (NCT of Delhi) and another [2020 (1)** ## **KHC 663].** **sd/-** sks/23/4/2024 **C.S.DIAS, JUDGE**