Kerala High Court
Bunnas K Davis vs State Of Kerala on 27 January, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BA No.11032 of 2024
1
2025:KER:6421
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
BAIL APPL. NO. 11032 OF 2024
CRIME NO.530/2024 OF ALAPPUZHA SOUTH POLICE STATION,
ALAPPUZHA
AGAINST THE ORDER/JUDGMENT DATED 12.12.2024 IN
CRMC NO.1627 OF 2024 OF DISTRICT COURT & SESSIONS
COURT, THRISSUR
PETITIONER(S)/ACCUSED 1 AND 2:
1 BUNNAS K DAVIS
AGED 29 YEARS, S/O. DAVIS, KOLAMBRATH
HOUSE, JANAPATH ROAD, MULAYAM, THRISSUR,
PIN - 680 751
2 ANJANA
AGED 25 YEARS, W/O. BUNNAS, KOLAMBRATH
HOUSE, JANAPATH ROAD, MULAYAM, THRISSUR,
PIN - 680 751
BY ADVS.
SAIJO HASSAN
SANGEETH MOHAN
RESPONDENT(S)/STATE AND DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
BA No.11032 of 2024
2
2025:KER:6421
HIGH COURT OF KERALA, ERNAKULAM,
PIN - 682 031
2 MUSTHAQ MUHAMMAD
AGED 30 YEARS, S/O. MUHAMMAD NEWMAN,
MUSHTHAQ COTTAGE, PALACE WARD, IRON BRIDGE
P O. ALAPPUZHA, PIN - 688 011
BY ADVS.
SRI. HRITHWICK C.S., SR.PP
BIJU C ABRAHAM - R2
THOMAS C.ABRAHAM(K/517/2022)
BASIL MATHEW(K/000588/2020)
THIS BAIL APPLICATION HAVING COME UP FOR
ADMISSION ON 27.01.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
BA No.11032 of 2024
3
2025:KER:6421
P.V.KUNHIKRISHNAN, J.
-------------------------------------------
BA No.11032 of 2024
--------------------------------------------
Dated this the 27th day of January, 2025
ORDER
This Bail Application is filed under Section 482 of
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
2. The petitioners are accused in Crime
No.530/2024 of Alappuzha South Police Station. The
above case is registered against the petitioners
alleging offences punishable under Sections 406 and
420 r/w 34 of IPC.
3. The prosecution case is that the petitioners
obtained deposits from the defacto complainant by
giving a false promise to the effect that, if the
defacto complainant deposited amounts in their
2025:KER:6421
business namely BKD Trading, Black Dreams Trading,
BD Solutions, the amount can be returned with
maximum profit and interest. Accordingly, the
defacto complainant deposited an amount of
Rs.34,80,000/- in their accounts. After the period of
maturity, either the amount nor interest were
returned. Hence, it is alleged that the accused
committed the offence.
4. Heard the learned counsel appearing for
the petitioners and the learned Public Prosecutor.
5. The learned counsel for the petitioners
submitted that, even if the entire allegations are
accepted, no offence is made out against the
petitioners. It is only a monetary dispute. According
to the petitioner, the 1st petitioner and the defacto
complainant started a used Car sale business. The
defacto complainant invested Rs.34 lakhs. Out of
2025:KER:6421
that the petitioners sent Rs.26,50,000/- to Musthak
through his bank account and paid Rs.10 lakhs as
cash. It is also stated that, one Mr. Jithin invested
Rs.5,80,000/-. Out of that, Rs.1,88,420/- was paid by
the 1st petitioner. It is also the case of the petitioners
that the 1st petitioner demanded half of the amount
from Musthak for settling the amount of Jithin. It is
also the case of the petitioners that the petitioners
had remitted an amount of Rs.17,54,000/- through
bank transaction. The petitioners produced
Annexure-2 to prove the same. According to the
petitioners, no criminal offence is made out in this
case. The counsel also submitted that the petitioners
are ready to abide any conditions imposed by this
Court, if this Court grant them bail.
6. The counsel appearing for the defacto
complainant seriously opposed the bail application.
2025:KER:6421
The counsel submitted that the petitioners cheated
the defacto complainant. The learned Public
Prosecutor also opposed the bail application.
7. This Court considered the contentions of
the petitioners and the Public Prosecutor. It is true
that the allegations against the petitioners are
serious. But, the offence alleged is under Sections
406 and 420 of IPC. The maximum punishment that
can be imposed for the above offences is below 7
years. The Apex Court in Arnesh Kumar v. State
of Bihar and Another [2014 (8) SCC 273] observed
that, even while considering an application for
anticipatory bail, the court should take a lenient view
if the punishment that can be imposed is only up to 7
years. It will be better to extract the relevant portion
of the above judgment:
"7. xxxxxxxxx
7.1. From a plain reading of the
2025:KER:6421
aforesaid provision, it is evident that all
person accused of an offence punishable
with imprisonment for a term which may
be less than seven years or which may
extend to seven years with or without
fine, cannot be arrested by the police
officer only on his satisfaction that such
person had committed the offence
punishable as aforesaid. A police officer
before arrest, in such cases has to be
further satisfied that such arrest is
necessary to prevent such person from
committing any further offence; or for
proper investigation of the case, or to
prevent the accused from causing the
evidence of the offence to disappear; or
tampering with such evidence in any
manner; or to prevent such person from
making any inducement, threat or
promise to a witness so as to dissuade
him from disclosing such facts to the
court or the police officer, or unless such
accused person is arrested, his
conclusions, which one may reach based
on facts.
7.2. The law mandates the police
officer to state the facts and record the
2025:KER:6421
reasons in writing which led him to come
to a conclusion covered by any of the
provisions aforesaid, while making such
arrest. The law further requires the
police officers to record the reasons in
writing for not making the arrest.
7.3. In pith and core, the police
officer before arrest must put a question
to himself, why arrest? Is it really
required? What purpose it will serve?
What object it will achieve? It is only
after these questions are addressed and
one or the other conditions as
enumerated above is satisfied, the
power of arrest needs to be exercised. In
fine, before arrest first the police officers
should have reason to believe on the
basis of information and material that
the accused has committed the offence.
Apart from this, the police officer has to
be satisfied further that the arrest is
necessary for one or the more purposes,
envisaged by sub-clauses (a) to (e) of
clause (1) of Section 41 CrPC."
8. Keeping in mind the above principle laid
down by the Apex Court, this Court once again
2025:KER:6421
perused the allegations against the petitioners. I am
of the considered opinion that the custodial
interrogation of the petitioners is not necessary in
the facts and circumstances of the case. There can
be a direction to the petitioners to surrender before
the Investigating Officer and if arrest is recorded,
there can be a direction to release the petitioners on
bail.
9. Moreover, it is a well accepted principle
that the bail is the rule and the jail is the exception.
The Hon'ble Supreme Court in Chidambaram. P v
Directorate of Enforcement [2019 (16) SCALE
870], after considering all the earlier judgments,
observed that, the basic jurisprudence relating to bail
remains the same inasmuch as the grant of bail is
the rule and refusal is the exception so as to ensure
that the accused has the opportunity of securing fair
2025:KER:6421
trial.
10. Recently the Apex Court in Siddharth v
State of Uttar Pradesh and Another [2021(5)KHC
353] considered the point in detail. The relevant
paragraph of the above judgment is extracted
hereunder.
"12. We may note that personal liberty is an
important aspect of our constitutional mandate.
The occasion to arrest an accused during
investigation arises when custodial investigation
becomes necessary or it is a heinous crime or
where there is a possibility of influencing the
witnesses or accused may abscond. Merely
because an arrest can be made because it is
lawful does not mandate that arrest must be
made. A distinction must be made between the
existence of the power to arrest and the
justification for exercise of it. (Joginder Kumar v.
State of UP and Others (1994 KHC 189: (1994) 4
SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR
1994 SC 1349: 1994 CriLJ 1981)) If arrest is
made routine, it can cause incalculable harm to
the reputation and self-esteem of a person. If the
Investigating Officer has no reason to believe
2025:KER:6421
that the accused will abscond or disobey
summons and has, in fact, throughout
cooperated with the investigation we fail to
appreciate why there should be a compulsion on
the officer to arrest the accused."
11. In Manish Sisodia v. Central Bureau of
Investigation [2023 KHC 6961], the Apex Court
observed that, even if the allegation is one of grave
economic offence, it is not a rule that bail should be
denied in every case.
Considering the dictum laid down in the above
decisions and considering the facts and
circumstances of this case, this Bail Application is
allowed with the following conditions:
1. The petitioners shall appear before the
Investigating Officer within two weeks
from today and shall undergo
interrogation.
2. After interrogation, if the Investigating
2025:KER:6421
Officer propose to arrest the petitioners,
they shall be released on bail on
executing a bond for a sum of Rs.50,000/-
(Rupees Fifty Thousand only) with two
solvent sureties each for the like sum to
the satisfaction of the arresting officer
concerned.
3. The petitioners shall appear before
the Investigating Officer for interrogation
as and when required. The petitioners
shall co-operate with the investigation
and shall not, directly or indirectly make
any inducement, threat or promise 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.
2025:KER:6421
4. Petitioners shall not leave India
without permission of the jurisdictional
Court.
5. Petitioners shall not commit an
offence similar to the offence of which
they are accused, or suspected, of the
commission of which they are suspected.
6. 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 petitioners even while the
petitioners are 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].
2025:KER:6421
7. If any of the above conditions are
violated by the petitioners the
jurisdictional Court can cancel the bail in
accordance to law, even though this bail
is granted by this Court. The prosecution
and the victim are at liberty to approach
the jurisdictional Court to cancel the bail,
if any of the above conditions are
violated.
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE
