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2014 DIGILAW 971 (KER)

Joshua v. State of Kerala

2014-11-27

B.KEMAL PASHA

body2014
ORDER B. Kemal Pasha, J. 1. Petition filed under Section 439 CrPC. Petitioners, who are Nigerian citizens, have been undergoing detention in judicial custody for the period from 01/09/2014 onwards in connection with the investigation in Crime No. 1830/2014 of the Adoor Police Station, Pathanamthitta. 2. It is alleged that by offering various jobs through Internet they have amassed crores of rupees from various job seekers from India by exercising fraud and cheating. It is specifically alleged that in similar manner, an amount of Rs. 21,19,130/- has been taken away from the son of the de facto complainant through internet. Presently, the matter is pending investigation for the offences punishable under Sections 120(B) and 420 read with Section 34 of the Indian Penal Code, Section 66(D) of the Information Technology Act, 2000, Section 14(a) and (b) of the Foreigners Act, 1946 and Section 3(2)(a)(3) of the Passport Act, 1920. 3. Still the investigation is not complete. As the investigation is not over, final report has also not been filed. Now, the question arises is whether in such circumstances they are entitled to statutory bail under Section 167(2) of the CrPC. 4. Heard learned counsel for the petitioners and the learned Director General of Prosecution. 5. The learned DGP, by relying on the decision in Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation 2013 KHC 4402 : 2013 CriLJ 2734 : 2013 (3) KHC SN 2 : 2013 (2) KLD 128: 2013 (7) SCALE 7: AIR 2013 SC 1933 : 2013 (7) SCC 439 , has argued that in exceptional cases wherein facts are more, evidence is much and compelling circumstances are there, the Courts are empowered to take away the right of the accused under Section 167(2) CrPC. By pointing out the said decision, the learned DGP has argued that the Apex Court has approved the action of the Andhra Pradesh High Court in denying bail to the accused in the said case under Section 167(2) CrPC. On going through the said decision, it seems that permission was also granted by the Apex Court earlier and that was the main reason why the Apex Court had approved the act of the High Court in not granting bail under Section 167(2) CrPC to the concerned accused in that case. 6. On going through the said decision, it seems that permission was also granted by the Apex Court earlier and that was the main reason why the Apex Court had approved the act of the High Court in not granting bail under Section 167(2) CrPC to the concerned accused in that case. 6. The provisions under Section 167(2) CrPC are applicable not only to the citizens of India, but also to any person who is undergoing detention in connection with the investigation of an offence. If, as a matter of fact, final report has been filed, definitely, it could have been said that these petitioners are not entitled to the protection under Section 167(2) CrPC. When final report has not been filed, though these persons are Nigerian citizens who are not having any proper travel documents with them, the right under Section 167(2) CrPC cannot be curtailed. Matters being so, I am of the view that they are entitled to statutory bail under Section 167(2) CrPC. At the same time, this Court shall take into consideration the fact that their continued stay in the country will again create new offences, as it will amount to continued over stay. In such a case, the course open to this Court is to impose restrictions based on Section 11 of the Foreigners Order, 1948. Further, for ensuring the availability of the accused for trial, this Court is empowered to impose stringent conditions, even though they are entitled to the protection under Section 167(2) CrPC. In the result, this Bail Application is allowed and the petitioners shall be enlarged on bail on their executing a bond for Rs. 1,00,000/- (Rupees one lakh only) each with two solvent sureties each for the like sum each to the satisfaction of the Judicial First Class Magistrate's Court, Adoor and subject to the following terms and conditions: "(i) The Political agent or Diplomatic agent of the country to which the petitioners belong, shall execute a bond to the satisfaction of the Court below for an amount of Rs. 6,00,000/- (Rupees six lakhs only). (ii) These petitioners shall remain in Pathanamthitta District till the disposal of the case against them and they shall be under the strict supervision of the Civil Authority within the meaning of Section 11of the Foreigners Order, 1948. 6,00,000/- (Rupees six lakhs only). (ii) These petitioners shall remain in Pathanamthitta District till the disposal of the case against them and they shall be under the strict supervision of the Civil Authority within the meaning of Section 11of the Foreigners Order, 1948. (iii) The Civil Authority shall specify their place of residence, restrict their movements and their association with any person or class of persons other than those specified by the Civil Authority. (iv) These petitioners shall report before the Investigating Officer in between 9 a.m. and 11 a.m. on all Sundays and Thursdays commencing from 30/11/2014 for a period of three months or till the filing of the final report in this case, whichever is earlier. (v) The petitioners shall not tamper with the evidence or influence witnesses. (vi) The petitioners shall make themselves available for interrogation as and when required by the Investigating Officer. (vii) The petitioners shall not involve in any offence while on bail. It is made clear that the violation of any of the conditions stipulated above will result in the cancellation of bail."