The High Court · 2025

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 BAIL APPL. NO. 5157 OF 2025 CRIME NO.245/2025 OF KONGAD POLICE STATION, PALAKKAD PETITIONER(S)/ACCUSED: DON SIMON THOMAS AGED 55 YEARS S/O BENJAMIN THOMAS RESIDING AT CHERKKODI HOUSE, NEAR PUTHUPPALLI JACOBITE SYRIAN ORTHODOX CHURCH, PUTHUPPALLI VILLAGE, KOTTAYAM DISTRICT , NOW RESIDING AT THYKKUDAM SILVERSAND ISLAND AWHO, VAITTILA , ERNAKULAM, PIN - 682019 BY ADV A.CHANDRA BABU RESPONDENT(S)/STATE/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV. SRI.NOUSHAD K A, SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

10.04.2025, ALONG WITH BAIL APPL..5155/2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.5157 & 5155 of 2025 3 P.V.KUNHIKRISHNAN, J -------------------------------- B.A.Nos.5155 & 5157 of 2025 ------------------------------- Dated this the 10th day of April, 2025 O R D E R These Bail Applications filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita are connected and therefore, I am disposing of these bail applications by a common order.

2. Petitioner in these bail application is one and the same person. He is an accused in Crime Nos.358/2025 of Vizhinjam Police Station, Thiruvananthapuram and 245/2025 of Kongadu Police Station, Palakkad. The above cases are registered against the petitioner alleging offences punishable under Sections 420 of the Indian Penal Code, 24(1)(b) of the Emigration Act, 1983 and 318(4) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS').

3. The prosecution case is that the accused B.A.No.5157 & 5155 of 2025 4 collected huge amount from the defacto complainants in these cases offering job visa in Nigeria. Hence it is alleged that the accused committed the above said offences. The petitioner was arrested in connection with Crime No.358/2025 of Vizhinjam Police Station and subsequently, his arrest was recorded in Crime No.245/2025 of Kongad Police Station on

07.03.2025.

4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

5. Counsel for the petitioner submitted that the petitioner has not committed any offence. The petitioner collected the amount from the defacto complainants in these cases and had deposited the same to his counterpart in Nigeria. It is only an offer letter. The counsel also submitted that the petitioner is ready to abide any conditions if this Court grant him bail.

6. The Public Prosecutor opposed the bail application and submitted that there is criminal antecedents to the petitioner. B.A.No.5157 & 5155 of 2025 5

7. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that the allegation against the petitioner is serious. But the fact remains that the petitioner is in custody from 07.03.2025. Indefinite incarceration of the petitioner is not necessary. Considering the facts and circumstances of the case, I think the petitioner can be released on bail after imposing stringent conditions.

8. 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 trial.

9. Moreover, in Jalaluddin Khan v. Union of India [2024 KHC 6431], the Hon'ble Supreme Court observed that: B.A.No.5157 & 5155 of 2025 6 “21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. 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 Art.21 of our Constitution.” (underline supplied)

10. In Manish Sisodia v. Directorate of Enforcement [2024 KHC 6426], also the Hon'ble Supreme Court observed that: B.A.No.5157 & 5155 of 2025 7 “53. The Court further 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 our experience, we can say that 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 a 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, this 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 should recognize the principle that "bail is rule and jail is exception".”

11. Considering the dictum laid down in the above decision and considering the facts and circumstances of these cases, these Bail Applications are allowed with the following directions:

1. Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. B.A.No.5157 & 5155 of 2025 8

2. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner 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.

3. Petitioner shall not leave India without permission of the jurisdictional Court.

4. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

5. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in Anzar Azeez v. State of Kerala B.A.No.5157 & 5155 of 2025 9 [2025 SCC OnLine KER 1260] is applicable in these cases also.

6. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. Sd/- P.V.KUNHIKRISHNAN, JUDGE DM