Muhammed Arshad vs State Of Kerala
2024 Latest Caselaw 11418 Ker

Kerala High Court

Muhammed Arshad vs State Of Kerala on 23 April, 2024

Author: C.S.Dias

Bench: C.S.Dias

BAIL APPL. NO. 3223 OF 2024
                                    1

             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. 3223 OF 2024
   CRIME NO.244/2024 OF Infopark Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.2550 OF
2024 OF HIGH COURT OF KERALA
PETITIONER/S:

         MUHAMMED ARSHAD
         AGED 21 YEARS
         C/O. ASHRAF, ANAS VILLA, KALLURAVI, KANHANGAD
         SOUTH, HOSDURG, KASARAGOD, PIN - 671531

         BY ADVS.
         C.K.SREEJITH
         KOZHIPURATH PRASEETHA GOPALAKRISHNAN



RESPONDENT/S:

         STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031


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. 3223 OF 2024
                                 2

              Dated this the 23rd day of April, 2024

                            ORDER

This is the second application filed under Section

439 of the Code of Criminal Procedure, 1973, by the 2 nd

accused in Crime No.244/2024 of Infopark Police Station,

Ernakulam, registered against the accused for allegedly

committing the offences punishable under Sections 384

and 420 r/w Section 34 of the Indian Penal Code, 1860,

and Section 66D of the Information Technology Act,

2000. The petitioner was arrested on 17.03.2024.

2. The crux of the prosecution case, is that; the

accused, in furtherance of their common intention, to

make unlawful gain for themselves and unlawful loss to

the defacto complainant, telephoned him and

impersonated themselves as Delhi Police and told him

that someone was using his HDFC Account for unlawful

activities. In order to exonerate him from the

investigation and to legalize his funds through RBI super

vision account, he has to pay the accused an amount of BAIL APPL. NO. 3223 OF 2024

Rs.19,90,000/-. Accordingly, the accused extorted the

above said amount from the account of the defacto

complainant. Thus, the accused have committed the

above offences.

3. Heard; Sri. Sreejith.C.K, the learned counsel for

the petitioner and Sri.C.S.Hrithwik, the learned Senior

Public Prosecutor.

4. The learned counsel for the petitioner submitted

that the petitioner is totally innocent of the accusations

levelled against him. He has been falsely implicated in

the crime. The offences alleged against the petitioner

will not be attracted. The petitioner is only a dealer in

digital currency like BITCOIN and other digital

currencies, which is permissible by the Reserve Bank of

India. The petitioner has customers all over the world.

The defacto complainant may have lost his money while

doing such transactions. However, the petitioner cannot

be accused of the monetary transaction done by the

defacto complainant. In any case, the petitioner has been

in judicial custody since 17.03.2024, the investigation in BAIL APPL. NO. 3223 OF 2024

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. If the petitioner is released on bail,

there is every likelihood of him tampering with the

evidence and sabotaging the investigation. Therefore,

the application may be dismissed.

6. The prosecution allegation is that the accused in

furtherance of their common intention impersonated

themselves as Delhi Police and received an amount of

Rs.19,90,000/- from the defacto complainant. The fact

remains that the petitioner has been in judicial custody

for the last 35 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 BAIL APPL. NO. 3223 OF 2024

the presumption of innocence, until a person is found

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 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 BAIL APPL. NO. 3223 OF 2024

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 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 of 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 BAIL APPL. NO. 3223 OF 2024

in judicial custody. The right to bail cannot be denied

merely due to the sentiments of the society.

12. On an overall consideration of the facts, the

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

one month, 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 BAIL APPL. NO. 3223 OF 2024

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 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 BAIL APPL. NO. 3223 OF 2024

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 Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].

sd/-

C.S.DIAS, JUDGE rkc/23.04.24 BAIL APPL. NO. 3223 OF 2024

APPENDIX OF BAIL APPL. 3223/2024

PETITIONER ANNEXURES

Annexure A1 THE TRUE COPY OF THE FIR NO. 244/2024 ON THE FILE OF INFOPARK POLICE STATION, ERNAKULAMDT. 1/3/2024

Annexure A2 THE TRUE COPY OF THE ORDER IN CRL.MP.

741/2024 DATED 22/3/2024

Annexure A3 ORDER DATED 08-04-2024 IN BAIL APPL.2550/2024 ON HIGH COURT