Central Bureau Of Investigation vs Central Bureau Of Investigation
2021 Latest Caselaw 7722 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

              THE HONOURABLE MR. JUSTICE P.SOMARAJAN

     FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                    Crl.MC.No.1070 OF 2021(C)

AGAINST THE ORDER/JUDGMENT IN CRL.MC 296/2021 DATED 16-02-2021 OF
            ADDITIONAL DISTRICT COURT-VII, ERNAKULAM


PETITIONER/RESPONDENT/COMPLAINANT:

             CENTRAL BUREAU OF INVESTIGATION
             COCHIN, REPRESENTED BY SUPERINTENDENT OF POLICE, CBI,
             COCHIN 682 017.

             BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

RESPONDENTS/PETITIONERS 2 AND 4/ACCUSED 2 AND 4:

      1      PRABHA THOMAS
             W/O.DANNIEL THOMAS, AGED 60 YEARS, PERMANENTLY
             RESIDING AT INCHIKATTIL HOUSE, P.O. VAKAYAR, KONNI,
             PATHANAMTHITTA 686 698

      2      DR.REBA MARY THOMAS
             D/O.DANNIEL THOMAS, AGED 26 YEARS, PERMANENTLY
             RESIDING AT INCHIKATTIL HOUSE, P.O. VAKAYAR, KONNI,
             PATHANAMTHITTA 686 698

             R1-2 BY ADV. SRI.C.S.MANU


             ASG.SRI.P.VIJAYAKUMAR

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
05.03.2021, ALONG WITH Crl.MC.1069/2021(C), THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
 Crl.MC.1070/2021,Crl.MC.1069/2021      2


              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                THE HONOURABLE MR. JUSTICE P.SOMARAJAN

     FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                       Crl.MC.No.1069 OF 2021(C)

 AGAINST THE ORDER/JUDGMENT IN CRMC 297/2021 DATED 16-02-2021 OF
  ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII, ERNAKULAM


PETITIONER/RESPONDENTS/COMPLAINANT:

               CENTRAL BUREAU OF INVESTIGATION
               COCHIN, REPRESENTED BY SUPERINTENDENT OF POLICE,
               CBI , COCHIN 682 017.

               BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

RESPONDENTS/PETITIONER/5TH ACCUSED:

               DR. RIA ANN THOMAS, D/O. THOMAS DANNIEL,
               AGED 31 YEARS, PERMANENTLY RESIDING AT INCHIKKATTIL
               HOUSE P.O. VAKAYAR, KONNI, PATHANAMTHITTA 686 698.

               R1 BY ADV. SRI.C.S.MANU

               ASG, SRI.P.VIJAYAKUMAR

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
05.03.2021, ALONG WITH Crl.MC.1070/2021(C), THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
 Crl.MC.1070/2021,Crl.MC.1069/2021       3




                                    ORDER

The regular bail granted to accused Nos.2,4 and

5 challenged on the ground that the gravity of the

offence alleged would dis-entitle the grant of bail

at this juncture, especially when investigation is

at the preliminary stage. This court by its

judgment dated 23/11/2020 in WP(C) No.18199/2020

handed over the investigation to the 'CBI'.

Regular bail was extended to accused Nos.2,4 and 5

after a detention of more than six months. The

investigation is going on a slow phase, which is

evident from the admission made by the learned

Assistant Solicitor General for the 'CBI' that so

far they have examined only three witnesses in

connection with the investigation and registration

of one FIR. It is inter alia contended that an

amount of Rs.1,600 crores involved in the alleged

malpractice and the persons who were defrauded

comes to more than 30,000. It is also submitted

that they were maintaining several branches in

different states in India, and a mere direction to

appear before the investigation is not sufficient

to check out the chances of their contact with the

staff and Manager of the branches.

2. It is well settled that there cannot be any

hard and fast rule in the matter of grant of

regular bail, but it should be governed by atleast

five factors. The following factors are to be

taken into consideration while considering an

application for bail: ie., (i). The nature of

accusation and the severity of the punishment in

the case of conviction and the nature of the

materials relied upon by the prosecution;

(ii) reasonable apprehension of tampering with the

witnesses or apprehension of threat to the

complainant or the witnesses; (iii) reasonable

possibility of securing the presence of the accused

at the time of trial or the likelihood of his

abscondence; (iv) character, behaviour and

standing of the accused and the circumstances which

are peculiar to the accused; (v) larger interest of Crl.MC.1070/2021,Crl.MC.1069/2021 5

the public or the State and similar other

considerations (Prahlad Singh Bhati v. NCT, Delhi

and another (2001) 4 SCC 280).

3. The legal position was subsequently

reiterated in Kalyan Chandra Sarkar v. Rajesh

Ranjan and another (2004 7 SCC 528), wherein three

factors were recognized governing the field of

grant of regular bail which are as follows:(a) The

nature of accusation and the severity of punishment

in case of conviction and the nature of supporting

evidence. (b) Reasonable apprehension of

tampering with the witness or apprehension of

threat to the complainant. (c) Prima facie

satisfaction of the court in support of the charge.

(See Ram Govind Upadhyay v. Sudarshan Singh (2002)

3 SCC 598) and Puran v. Rambilas (2001) 6 SCC 338.)

4. The learned counsel for the 'CBI' also

relied on the decision drawn in Prasanta Kumar

Sarkar v. Ashis Chatterjee and ors. (AIR 2011 SC

274) and relied on paragraph 11 of the said

judgment, which is extracted below for reference:

                 "11. We are of the opinion that                       the
            impugned order is clearly unsustainable.                    It
 Crl.MC.1070/2021,Crl.MC.1069/2021     6

is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (v) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. (see: State of U.P. through CBI v. Amarmani Tripathi (MANU/SC/0677/2005: (2005) 8 SCC 21; Prahlad Singh Bhati v. NCT, Delhi and Anr. MANU/SC/0193/2001: (2001) 4 SCC 280; Ram Govind Upadhyay v. Sudarshan Singh and Ors. MANU/SC/0203/2002; (2002) 3 SCC 598).

5. It is true that there is allegation of

involvement of more than 30,000 subscribers in the

transaction alleged to have been done by the

accused person and involvement of 1,600 crores. It

is also brought to the notice of this court that

some of the institutions were run by the wife and

children without the juncture of the husband.

6. The fact that the 'CBI' had examined only

three witnesses during the period of three months Crl.MC.1070/2021,Crl.MC.1069/2021 7

commencing from 23/11/2020, in connection with the

crime would show and tell upon the way in which the

investigation is progressing. The fact that they

were detained for more than six months in

connection with the alleged offence and that they

were granted bail subject to strict condition

including a condition directing them to appear

before the investigating officer on all Saturdays,

besides the direction to appear as and when

required would itself show a proper balance so as

to promote justice without affecting the

investigation, otherwise, it would be tantamount to

punishing the accused person without a trial by

ordering further detention. Going by the orders

under challenge, I am of the view that the learned

designated court had struck a balance in between

the mitigating and aggravating circumstances by

taking into consideration all relevant aspects and

extended bail with stringent condition. Hence,

there is no reason for any interference especially

when in some other cases bail was granted by this

court including the very same persons in bail Crl.MC.1070/2021,Crl.MC.1069/2021 8

application Nos.9192/2020 and 1213/2021 dated

18/02/2021 and 02/02/2021 respectively.

Hence, Crl.M.Cs. fail, dismissed.

Sd/-

P.SOMARAJAN

JUDGE

MSP Crl.MC.1070/2021,Crl.MC.1069/2021 9

APPENDIX OF Crl.MC 1070/2021 PETITIONER'S/S ANNEXURES:

ANNEXURE A1 TRUE COPY OF THE FIRST INFORMATION REPORT IN RC 01(E)/2021

ANNEXURE A2 TRUE COPY OF THE BAIL APPLICATION FILED BY THE RESPONDENTS.

ANNEXURE A3 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER.

ANNEXURE A4 CERTIFIED COPY OF THE ORDER DATED 16.2.2021 OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE-VII, ERNAKULAM IN CRL.M.C.NO.296 OF 2021.

RESPONDENTS ANNEXURES:NIL Crl.MC.1070/2021,Crl.MC.1069/2021 10

APPENDIX OF Crl.MC 1069/2021 PETITIONER'S/S ANNEXURES:

ANNEXURE A1 TRUE COPY OF THE FIRST INFORMATION REPORT IN RC 01(E)/2021.

ANNEXURE A2 TRUE COPY OF THE BAIL APPLICATION FILED BY THE RESPONDENT.

ANNEXURE A3 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER.

ANNEXURE A4 CERTIFIED COPY OF THE ORDER DATED 16.02.021 OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE VII, ERNAKULAM IN CRL.M.C. NO. 297 OF 2021.

RESPONDENTS ANNEXURES: NIL

//TRUE COPY//

P.A TO JUDGE