Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 BAIL APPL. NO. 895 OF 2024 CRIME NO.2608/2023 OF Kalamassery Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT Bail Appl. 113/2024 OF HIGH COURT OF KERALA PETITIONER/S: AFFIN THOMAS AGED 39 YEARS S/O THOMAS M J MANIANGATTU HOUSE NEELEESWARAM MALAYATOOR VILLAGE, ERNAKULAM -, PIN - 683587 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN RESPONDENT/S: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: SR PP SMT NEEMA T V THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH Bail Appl..922/2024, 924/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 BAIL APPL. NO. 922 OF 2024 CRIME NO.2689/2023 OF Kalamassery Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT Bail Appl. 115/2024 OF HIGH COURT OF KERALA PETITIONER/S: AFFIN THOMAS AGED 39 YEARS MANIANGATTU HOUSE NEELEESWARAM MALAYATOOR VILLAGE, ERNAKULA, PIN - 683587 BY ADVS. S.RAJEEV M.S.ANEER V.VINAY PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN RESPONDENT/S: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH Bail Appl..895/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 BAIL APPL. NO. 924 OF 2024 CRIME NO.28/2024 OF Kalamassery Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT CMP 146/2024 OF JMFC, KALAMASSERY (TEMPORARY) PETITIONER/S: AFFIN THOMAS AGED 39 YEARS S/O THOMAS M J MANIANGATTU HOUSE NEELEESWARAM MALAYATOOR VILLAGE, ERNAKULAM -, PIN - 683587 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN RESPONDENT/S: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH Bail Appl..895/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 BAIL APPL. NO. 925 OF 2024 CRIME NO.2688/2023 OF Kalamassery Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT Bail Appl. 115/2024 OF HIGH COURT OF KERALA PETITIONER/S: AFFIN THOMAS AGED 39 YEARS S/O THOMAS M J MANIANGATTU HOUSE NEELEESWARAM MALAYATOOR VILLAGE, ERNAKULAM -, PIN - 683587 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN RESPONDENT/S: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: SR PP SMT NEEMA T V THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH Bail Appl..895/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 BAIL APPL. NO. 927 OF 2024 CRIME NO.29/2024 OF Kalamassery Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT CMP 145/2024 OF JMFC, KALAMASSERY (TEMPORARY) PETITIONER/S: AFFIN THOMAS AGED 39 YEARS S/O THOMAS M J MANIANGATTU HOUSE NEELEESWARAM MALAYATOOR VILLAGE, ERNAKULAM -, PIN - 683587 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN RESPONDENT/S: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: SR PP SMT NEEMA T V THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH Bail Appl..895/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 9TH DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 BAIL APPL. NO. 928 OF 2024 CRIME NO.2821/2023 OF Kalamassery Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT CMP 144/2024 OF JMFC, KALAMASSERY (TEMPORARY) PETITIONER/S: AFFIN THOMAS AGED 39 YEARS S/O THOMAS M J MANIANGATTU HOUSE NEELEESWARAM MALAYATOOR VILLAGE, ERNAKULAM -, PIN - 683587 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN
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 09.02.2024, ALONG WITH Bail Appl..895/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.S.DIAS,J ====================== Bail Application Nos.895, 922, 924, 925, 927 and 928 of 2024 ----------------------------------- Dated this the 9th day of February, 2024
COMMON ORDER
The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 1 st accused in Crime Nos.2608/2023, 2689/2023, 28/2024, 2688/2023, Station, Ernakulam, registered against the accused (three in number) for allegedly committing the offences punishable under Secs.406 and 420 read with Section 34 of the Indian Penal Code. The petitioner's arrest was recorded in the above crimes on 17.12.2023.
2. The gist of the prosecution case is that: the
accused with an intention to obtain unlawful gain from the informants, received amounts as tuition fees from them promising to arrange free admission in a course named AUSBUILDING IN NURSING in Germany through an establishment named ABRO-AID Immigration Service. Although the accused received the amounts from the informants, they failed to provide admission for the informants. Thus, the accused have committed the above offences.
3. Heard; Sri.S.Rajeev, the learned counsel appearing for the petitioner and Smt.Neema T.V., Smt.Seetha S. and Sri.C.S.Hrithwik, the learned Public Prosecutors.
4. The learned counsel for the petitioner
submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crimes. The petitioner has no mens rea to cheat the informants. The petitioner had arranged a course for students to study the German language. But, the faculty who was supposed to teach the students, left the services of the institution and, therefore, the course could not be completed. The petitioner was arrested in Crime No.2454/2023 by the very same police station. In that case, the petitioner has already been released on statutory bail. The petitioner has all through out been in
judicial custody. The investigation in the crimes have been completed and recoveries have been effected. The petitioner's formal arrest was recorded in these cases on 17.12.2023, i.e., much later to his original arrest. Therefore, as the petitioner has been in judicial custody for more than the stipulated period of 60 days, the petitioner may be released on bail. The petitioner is willing to co-operate with the investigation and abide by any stringent condition that may be imposed by this Court. Hence, the applications may be allowed.
5. The learned Public Prosecutors opposed the
applications. They submitted that in addition to the above six crimes there is also Crime No.2454/2023, wherein the petitioner was originally arrested. The petitioner has cheated the innocent defacto complainants by siphoning of their money. The investigation in the case is not complete. If the petitioner is released on bail, there is every likelihood of him tampering with the evidence and also fleeing from justice. Hence, the applications may be dismissed.
6. On an analysis of the materials placed on record,
it is undisputed that the petitioner was arrested in Crime No.2454/2023 by the very same Investigating Officer. In that crime, the petitioner was released on statutory bail after the completion of 60 days. In fact, the petitioner's arrest was recorded by the very same Investigating Officer, subsequently on 17.12.2023 while he was in
custody in Crime No.2454/2023. Therefore, the petitioner has been in custody for the last more than 60 days. The maximum punishment that can be imposed as against the petitioner for the offences alleged against him is ten years. Therefore, the time period for statutory bail is also 60 days.
7. It is well settled that the antecedents of a person shall be the sole criteria to deny bail to the accused.
8. In Sanjay Chandra v. CBI, [2012 1 SCC 40], the
Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence until a person is found guilty. Any imprisonment prior to conviction is to be considered as a punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct.
9. In Dataram Singh v. State of U.P., [(2018) 3
SCC 22] the Honourable Supreme Court observed that grant of bail is a 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.
10. Subsequently, in State of Kerala v. Raneef,
[(2011) 1 SCC 784], the Honourable Supreme Court has again held 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.
11. On a consideration of the facts, the materials
placed on record, the rival submissions made across the Bar especially taking into account the fact that the petitioner's arrest was recorded on 17.12.2023 and that he has already been enlarged on statutory bail in the first crime by the very same Police Station, i.e., Crime No.2454/2023, that the investigation in the case is practically complete and that the recovery has been effected, I am of the definite view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow these bail applications.
In the result, the applications are allowed, by directing the petitioner to be released on bail on him executing bonds for Rs.1,00,000/- (Rupees One lakh only) in all the cases 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 Tuesday and 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;
(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) The petitioner shall furnish his present address and permanent address, and his mobile phone number to the court below and the Investigating Officer;
(vi) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Ernakulam without prior permission of the jurisdictional court.
(vii) 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. (viii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.
(ix) 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/09.02.24 APPENDIX OF BAIL APPL. 922/2024 PETITIONER ANNEXURES Annexure 1 ORDER DATED 22-01-2024 IN BAIL APPL.115/2024 ON HIGH COURT APPENDIX OF BAIL APPL. 924/2024 PETITIONER ANNEXURES Annexure I COPY OF THE ORDER IN CMP NO 146/2024 APPENDIX OF BAIL APPL. 925/2024 PETITIONER ANNEXURES Annexure 1 ORDER DATED 22-01-2024 IN BAIL APPL.115/2024 ON HIGH COURT APPENDIX OF BAIL APPL. 927/2024 PETITIONER ANNEXURES Annexure I COPY OF THE ORDER IN CMP NO 145/2024 APPENDIX OF BAIL APPL. 928/2024 PETITIONER ANNEXURES Annexure-I COPY OF THE ORDER IS PRODUCED HEREWITH AND MAY BE MARKED AS ANNEXURE I. APPENDIX OF BAIL APPL. 895/2024 PETITIONER ANNEXURES Annexure 1 ORDER DATED 22-01-2024 IN BAIL APPL.113/2024 ON HIGH COURT