Kerala High Court
Habeeb Rahman. C.V vs State Of Kerala on 23 April, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 23RD DAY OF APRIL 2024 / 3RD VAISAKHA, 1946
BAIL APPL. NO. 3343 OF 2024
CRIME NO.328/2024 OF Kundara Police Station, Kollam
AGAINST THE ORDER/JUDGMENT DATED 09.04.2024 IN CRMC NO.619 OF 2024
OF DISTRICT COURT & SESSIONS COURT,KOLLAM
PETITIONER/S:
HABEEB RAHMAN. C.V
AGED 46 YEARS
S/O KRISHNAN, BISMILLA VEEDU, MANNANGANDI THAZHATH,
EDAVALATH PARAMBU, PALLIPPOI, CHELANNUR. P.O,
KOZHIKKODE DISTRICT, PIN - 673613
BY ADVS.
M.A.SULFIA
ABDUL JALEEL.A
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
2 THE STATION HOUSE OFFICER
KUNDARA POLICE STATION, KOLLAM DISTRICT., PIN - 691501
OTHER PRESENT:
SR PP SRI C S HRITHWIK
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 3343 OF 2024
2
Dated this the 23rd day of April, 2024
ORDER
The application is filed under Section 439 of the
Code of Criminal Procedure, 1973, by the accused in
Crime No.328/2024 of the Kundara Police Station,
Kollam, registered against the accused, for allegedly
committing the offences punishable under Sections 419
and 420 r/w. Section 34 of the Indian Penal Code (in
short, 'IPC') and Section 66D of the Information
Technology Act. The petitioner was arrested on
24.03.2024.
2. The prosecution case, in brief, is that: the
accused, with an intention to make unlawful gain for
himself and to make unlawful loss for the defacto
complainant, had contacted the defacto complainant
through Facebook and offered him a loan for
Rs.1,00,000/- and received an amount of Rs.10,000/-.
Subsequently, he made the defacto complainant again
pay him a further amount of Rs.70,300/- on different
BAIL APPL. NO. 3343 OF 2024
occasions. The accused received a total amount of
Rs.80,300/- from the defacto complainant.
Subsequently, the accused again withdrew an amount
of Rs.8,50,500/- from the bank account of the defacto
complainant by committing an online fraud. Thus, the
accused has committed the above offences.
3. Heard; Smt.Sulfia M.A., 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. The petitioner has no
connection or role in the amount that was paid by the
defacto complainant. In fact, the petitioner was with his
son, who was seriously injured in an accident, in the
hospital. The online transactions were done by a person
named Nihal, to whom the petitioner had given two
blank signed cheques. Actually, the petitioner is a
BAIL APPL. NO. 3343 OF 2024
victim in the above crime. In any given case, the
petitioner has been in judicial custody for the last one
month, the investigation in the case is 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 opposed the
application. He submitted that the investigation in the
case is in progress. He further stated that if the
petitioner is released on bail, there is every likelihood
of him tampering with the evidence and sabotaging the
investigation. Hence, the application may be dismissed.
6. The crux of the prosecution allegation is that the
accused had received Rs.80,300/- from the defacto
complainant by assuring him a loan from a firm named
Aspire Finance. Subsequently, the accused committed
BAIL APPL. NO. 3343 OF 2024
an online fraud and withdrew Rs.8,50,500/- from the
bank account of the defacto complainant. The fact
remains that the petitioner has been in judicial custody
for the last one month, the investigation in the case is
complete and recovery has been effected. The
petitioner had filed a similar application before the
Court of Session, Kollam, which was dismissed by the
learned Sessions Judge as per Annexure-A4 order
principally on the finding that the investigation was in
progress.
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 imprisonment prior to
conviction is to be considered as punitive and it would
BAIL APPL. NO. 3343 OF 2024
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
BAIL APPL. NO. 3343 OF 2024
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 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
BAIL APPL. NO. 3343 OF 2024
rival submissions made across the Bar and the
materials placed on record, particularly taking note of
the fact that the petitioner has been in judicial custody
for the last 30 days, the investigation in the case is
practically complete, the recovery has been effected
and the petitioner does not have criminal antecedents, I
am of the view that the petitioner's further detention is
unnecessary. Hence, I am inclined to allow the
application.
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 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
BAIL APPL. NO. 3343 OF 2024
report is filed. 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 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. 3343 OF 2024
(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/-
C.S.DIAS, JUDGE
rkc/23.04.24
BAIL APPL. NO. 3343 OF 2024
APPENDIX OF BAIL APPL. 3343/2024
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF REMAND REPORT IN CRIME
NO.328/2024 OF KUNDARA POLICE STATION
DATED 24/03/2024
Annexure A2 A TRUE COPY OF FIR IN CRIME NO.328/2024
OF KUNDARA POLICE STATION DATED
25/02/2024
Annexure A3 A TRUE COPY REPRESENTATION DATED
12/04/2024
Annexure A4 A CERTIFIED COPY OF ORDER IN CRL.MC
NO.619/2024 DATED 08/04/2024 OF LEARNED
SESSIONS COURT, KOLLAM
Annexure A5 TRUE COPY OF DISCHARGE SUMMARY OF SON OF
THE PETITIONER DATED NIL
