Jabbar N.S vs State Of Kerala
2024 Latest Caselaw 29061 Ker

Kerala High Court

Jabbar N.S vs State Of Kerala on 10 October, 2024

Author: C.S.Dias

Bench: C.S.Dias

BAIL APPL. NO. 7763 OF 2024
                                     1


                                                   2024:KER:75190
             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

   THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946

                      BAIL APPL. NO. 7763 OF 2024

 CRIME NO.407/2024 OF PARIYARAM MEDICAL COLLEGE POLICE STATION,

                                  Kannur

     AGAINST THE ORDER/JUDGMENT DATED 09.09.2024 IN CRMP NO.6040

OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PAYYANNUR

PETITIONER/S:

            JABBAR N.S,
            AGED 40 YEARS
            S/O SIDDIQUE, NEYTHALI HOUSE, EDAVOOR, KOOVAPPADI,
            ERNAKULAM (DIST.) KERALA, PIN - 683544


            BY ADVS.
            ANIL K.MUHAMED
            KRISHNAKUMAR G.
            AJIN SALAM
            MUHAMMED AFRIN NUHMAN T.T.




RESPONDENT/S:

            STATE OF KERALA,
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            PIN - 682031
            SR.PP.SMT.SEETHA S.


     THIS   BAIL    APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
10.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 BAIL APPL. NO. 7763 OF 2024
                                    2


                                                           2024:KER:75190
                           C.S.DIAS,J
            --------------------------------------------
           Bail Application No.7763 of 2024
           ---------------------------------------------
         Dated this the 10th day of October, 2024


                              ORDER

The application is filed under Sec.483 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS')

by the 2nd accused (wrongly shown as third accused in the

bail application) in Crime No.407/2024 of the Payyannur

Police Station, Kannur, which is registered against the

accused, for allegedly committing the offence punishable

under Section 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 04.09.2024.

2. The prosecution case, in brief, is that: the accused,

in furtherance of their common intention, between the

period from 23.05.2024 to 14.06.2024 had induced the

defacto complainant to invest money in an online business

named 'Professor Robert Profit Group 619' and send him a

whatsapp group link and instigated him to deposit BAIL APPL. NO. 7763 OF 2024

2024:KER:75190 Rs.1,70,6000/- to various bank accounts in installments.

After receiving the money, the accused de-activated the

account and failed to pay the profit or return the capital to

the defacto complainant. Thus, the accused have committed

the above offences.

3. Heard; Sri. Anil K.Muhammed, the learned counsel

appearing for the petitioner and Smt.Seetha S., the learned

Public Prosecutor.

4. The learned counsel for the petitioner

submitted that the petitioner is innocent of the accusations

levelled against him. There is no material to substantiate the

petitioner's culpability in the crime. In fact the petitioner is

also a victim in the above episode. It is the 1 st accused who

created the online platform. The petitioner also invested

money in the same. In any given case, the petitioner has

been in judicial custody for the last more than 36 days, the

investigation in the case, so far as the petitioner is

concerned, is practically complete and recovery has been

effected. Furthermore, the petitioner does not have any BAIL APPL. NO. 7763 OF 2024

2024:KER:75190 criminal antecedents. Hence, the application may be

allowed.

5. The learned Public Prosecutor opposed the

application. The Investigating Officer has filed a bail

objection report, inter alia, contending that there are

incriminating materials to substantiate that the petitioner

has received Rs.50,000/- as proceeds of the crime. She

submitted that the investigation is only at the nascent stage.

The other accused have to be arrested. If the petitioner is

granted an order of pre-arrest bail, it may hamper the

investigation. Hence, the application may be dismissed.

6. The prosecution allegation against the petitioner is

that he along with the other accused had induced the

defacto complainant to invest money in an online business

on the assurance of paying profit. After the defacto

complainant deposited the money, the accused de-activated

the account. Prima facie, it is seen that the petitioner has

received Rs.50,000/- as proceeds in the transaction.

However, these are matters to be investigated and ultimately

decided at the time of trial. The fact remains that the BAIL APPL. NO. 7763 OF 2024

2024:KER:75190 petitioner has been in judicial custody for the last more than

36 days, the investigation in the case, so far as the petitioner

is concerned, is practically complete and recovery has been

effected.

7. Recently, in Manish Sisodia v. Directorate of

Enforcement [2024 INSC 595] the Honourable Supreme

Court has observed that, over a period of time, the trial

courts and the High Courts have forgotten a very well-

settled principle of law that bail is not to be withheld as a

punishment. From its experience, it appears that the trial

courts and the High Courts attempt to play safe in matters of

grant of bail. The principle that bail is the rule and refusal is

an exception is, at times, followed in breach. On account of

non-grant of bail even in straight forward open and shut

cases, the Honourable Supreme Court is flooded with huge

number of bail petitions thereby adding to the huge

pendency. It is high time that the trial courts and the High

Courts recognize the principle that "bail is the rule and jail

is an exception.

BAIL APPL. NO. 7763 OF 2024

2024:KER:75190

8. Similarly, in Jalaluddin Khan v Union of India,

[2024 INSC 604] the Honourable Supreme Court has

observed in the following lines:

"21. xxxxx When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution".

9. On a careful consideration of the facts, the rival

submissions made across the Bar and the materials placed

on record, particularly on considering the fact that the

petitioner has been in judicial custody for the last more than

36 days, the investigation in the case is practically complete

and recovery has been effected and furthermore, the

petitioner does not have any criminal antecedents, I am of BAIL APPL. NO. 7763 OF 2024

2024:KER:75190 the view that the petitioner is entitled to be enlarged on bail.

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.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 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;

BAIL APPL. NO. 7763 OF 2024

2024:KER:75190 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.

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/10.10.24 BAIL APPL. NO. 7763 OF 2024

2024:KER:75190 APPENDIX OF BAIL APPL. 7763/2024

PETITIONER ANNEXURES

Annexure 1 CERTIFIED COPY OF ORDER DATED 09/09/2024 IN CRL. M. P. NO. 6040 OF 2024 IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANUR