Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE C.S. DIAS FRIDAY, THE 24TH DAY OF APRIL 2020/4TH VAISAKHA, 1942 Bail Application No. 2437 of 2020 (CRIME NO 168 OF 2020 OF KOTTARAKARA POLICE STATION, KOLLAM DISTRICT) Petitioners/Accused Nos 1 Aneesh Babu, aged 29 years, S/o Babu George, residing at VazhavilaVeedu, Ambalakkara P.O, Kottarakkara, Kollam - 691532 By Adv. Sandeep R.N. Adv. Keerthi Vijayan Respondents/complainants:
1. State of Kerala, Represented by the Public Prosecutor, High Court of Kerala, Ernakulam, Kochi-682 031.
2. The Sub Inspector of Police, Kottarakkara Police Station, Kollam By Public Prosecutor Sri.C.N.Prabhakaran THIS B.A. HAVING BEEN FINALLY HEARD ON 24.04.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
This is an application filed under Section 439 of the Code of Criminal Procedure.
2. The petitioner is the first accused in Crime
No.168/2020 of Kottarakkara Police Station. The petitioner is alleged to have committed the offences punishable under Secs.406, 420, 120B, 468, 471 and 34 of the Indian Penal Code.
3. The prosecution case, in brief, is that: the petitioner
with the second accused had with an intention to cheat the defacto complainant had made arrangement to import 500 tons of cashewnuts from Tanzania valued at 4,48,95,000/-. The defacto complainant had paid the entire amount for importing the cashewnuts. But the accused did not import the cashewnuts or repay the above amount. Hence, the petitioner and the other accused have committed the above offences.
4. The petitioner was arrested on 23.1.2020. His application for bail was dismissed by the learned Magistrate.
5. Heard the learned counsel for the petitioner and the learned Public Prosecutor via video-conferencing.
6. The learned counsel for the petitioner argued that the petitioner is innocent of the accusations levelled against him. He was arrested on 23.1.2020. He has been in custody
for the last 92 days. The investigation in the case is practically complete as against the petitioner. His continued detention is unnecessary. Hence the petitioner may be enlarged on bail.
7. The learned Public Prosecutor opposed the application.
8. The Hon'ble Supreme Court in Sanjay Chandra v. CBI [2012 (1) SCC 40] held as follows: "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution".
9. Recently, the Honourable Supreme Court in Nikesh
Tarachand Shah v. Union of India [2018 (11) SCC 1] after going back to the days of the Magna Carta and after referring to Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] has reiterated the same view in Sanjay Chandra v. CBI (supra). Again, in P.Chidamabram v. Directorate of Enforcement [(2019) SCC Online SC 1549] the above proposition has been fortified.
10. After the outbreak of the Novel Corona Virus (COVID
-19) pandemic in the country, the Hon'ble Supreme Court in In Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition (C) No.1 of 2020) observed that the issue of overcrowding of prisons is a matter of serious concern. The State Governments were directed to take adequate measures to de-congest the prisons. Following the above direction, the Home Department, Government of Kerala has promulgated
order dated 25.03.2020, inter alia, directing the release of
under-trial prisoners alleged to have committed offences punishable with punishment for seven years or less. Later, a Full Bench of this Court by order dated 25.03.20202 in W.P.(C) No.9400 of 2020 (Suo Motu), has issued directions to de- congest the prisons in the State, keeping in mind the proposition that bail is the rule and jail is the exception.
11. Having regard to the facts and circumstances of the
case, particularly the fact that the petitioner has been in incarceration for the last 92 days; that the investigation in the case is practically complete as against the petitioner; that the petitioner's continued detention is unnecessary; the legal proposition laid down by the Honourable Supreme Court in the aforecited decisions; the directions of the Hon'ble Supreme Court and a Full Bench of this Court to decongest prisons in view of Covid-19 pandemic, I am inclined to allow this bail application.
12. In the result this bail application is allowed, on the following conditions:-
(i) Due to the present National lock-down and
the closure of Courts, the Jail Superintendent, where the petitioner is incarcerated, is directed to release the petitioner on him furnishing his permanent address and phone number and the addresses and phone numbers of his proposed sureties/immediate relatives. The petitioner shall also file an undertaking to the Jail Superintendent that he and his sureties will execute the bail bond before the jurisdictional Court within one week of its re-opening. The Jail Superintendent after ensuring the compliance of the above conditions, shall release the petitioner to the Station House Officer of the Police Station where the crime has been registered, who shall after noting down the above details, release the petitioner. The Investigating Officer shall keep a close vigil on the whereabouts of the petitioner.
(ii) The petitioner shall within one week from
the re-opening of the jurisdictional Court, if not already re-opened, execute a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court.
(iii) The petitioner shall appear before the Investigating Officer on all Saturdays between 10.00 a.m and 11 a.m till final report is filed.
(iv) The petitioner shall not tamper with the evidence or influence the witnesses in the case, in any manner, whatsoever.
(v) The petitioner shall not commit any offence while on bail.
(vi) The petitioner shall not leave the State of Kerala without the permission of the jurisdictional court.
(vii) Needless to mention that, if the petitioner
violates any of the above conditions, the Station House Officer shall be at liberty to approach the jurisdictional Court and file appropriate application seeking for cancellation of the bail. Sd/- C.S.DIAS JUDGE sks/24.4.2020