BY AD v. B.MUHAMMED SHAHEEL

O R D E R Dated this the 2 nd day of August , 202 4 The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS', for short), by the first accused in Crime No.1630/2023 of the Kadavanthra Police Station, Ernakulam, which is registered against him, for allegedly committing the offences punishable under Sections 406 and 420 r/w Section 34 of the Indian Penal Code. The petitioner was arrested and remanded to judicial custody 24.06.2024.

2. The gist of the prosecution case is that; the accused, in furtherance of their common intention, had induced the de facto complainant that they would arrange an employment Visa in Spain and accordingly, received Rs.6,00,000/- from the de facto complainant. However, the accused did not arrange the Visa and only returned Rs.1,00,000/- to the de facto complainant. Thus, the accused have committed the above offences. BAIL APPL. NO. 6259 OF 2024 -: 3 :-

3. Heard; Sri.B.Muhammed Shaheel, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.

4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the above offences. In fact, the petitioner was arrested in various other crimes and had undergone judicial custody for more than two months. It was after the petitioner was released on bail, his arrest was recorded in the present crime on

24.06.2024. The petitioner has been in judicial custody for the last 47 days, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner's further detention may not be necessary. Hence, the application may be allowed. BAIL APPL. NO. 6259 OF 2024 -: 4 :-

5. The learned Public Prosecutor opposed the application. He submitted that the petitioner is a habitual offender. There are numerous cases registered against the petitioner by various police stations in the State for cheating several persons. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed.

6. The prosecution allegation is that; the petitioner along with the other accused had induced the de facto complainant to pay them Rs.6,00,000/- on the assurance of securing an employment Visa. However, the petitioner did not secure the Visa, but only returned Rs.1,00,000/- to the de facto complainant. The fact remains that the petitioner has been in judicial custody for the last 47 days, the investigation in the case is practically complete and recovery has been effected.

7. It is well settled in Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], that BAIL APPL. NO. 6259 OF 2024 -: 5 :- merely because a person has an antecedent, the same shall not be treated as a ground to deny bail to that person.

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 Article 21 of the Constitution. BAIL APPL. NO. 6259 OF 2024 -: 6 :-

10. The principle that bail is the rule and jail is an exception is the touch stone of Article 21 of the Constitution of India. The right to bail cannot be denied merely due to the sentiments of the society.

11. On an overall 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 47 days, the investigation in the case is practically complete and recovery has been effected, I am of the firm view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the application, but subject to conditions. 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 :- BAIL APPL. NO. 6259 OF 2024 -: 7 :- (i) The petitioner shall appear before the Investigating Officer on every second 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 directed; (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 them 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) 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. 6259 OF 2024 -: 8 :- (v) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. (vi) 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]. Jvt/2.8.2024 Sd/- C.S. DIAS, JUDGE BAIL APPL. NO. 6259 OF 2024 -: 9 :- APPENDIX OF BAIL APPL.6259/2024 PETITIONER ANNEXURES :- Annexure 1 Annexure A2 Annexure A3 Annexure A4 ORDER DATED 04-04-2024 IN BAIL APPL.2027/2024 ON HIGH COURT TRUE COPY OF THE FIR IN CRIME NO. 1630/2023 OF KADAVANTHRA POLICE STATION, ERNAKULAM DISTRICT THE TRUE COPY OF THE COMMON ORDER DATED 15.01.2024 IN BAIL NOS. 11567 OF 2023, 11569 OF 2023, 11570 OF 2023,11573 OF 2023,11572 OF 2023 AND 11578 OF 2023 PASSED BY THIS HON'BLE COURT THE TRUE COPY OF THE FIR IN CRIME NO. 1338/2023 OF PAZHAYANGADI POLICE STATION DATED 13/12/2023