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2025 DIGILAW 503 (KER)

Sayeed M. K S/o Usman Haji v. State of Kerala

2025-03-07

P.V.KUNHIKRISHNAN

body2025
ORDER : P.V. KUNHIKRISHNAN, J. These Bail Applications are filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita ( BNSS ). These Bail Applications are connected and therefore, I am disposing of these cases by a common order. 2. Petitioner in these cases are one and the same. The above cases are registered under Sections 316(2), 318(4) r/w 3(5) of the Bharatiya Nyaya Sanhita ( BNS ), 2023 and also under Section 420 of the Indian Penal Code . 3. The prosecution case in all these cases is that, the petitioner who have 50% share in the ' Nice Sleep Company' which owns a chain of hostel for men and women, invited the defacto complainants in these cases for investment. The defacto complainants invested huge amount in the company. Thereafter, from 23.10.2024 onwards, the 1 st accused informed the investors that the company is suffering a loss and the invested amount will be returned after 1.5 years after settling the profit and loss. Thereafter, 1st accused executed a Power of attorney in favour of the 2 nd accused misrepresenting that the authority to run the company is with the 2 nd accused. It is alleged that the accused persons misappropriated the money received from the investors. Hence, it is alleged that the accused committed the offences. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that, the petitioner is in custody from 29.01.2025 onwards. The counsel submitted that the petitioner is ready to abide by any conditions, if this Court grants him bail. The counsel submitted that, there is no deliberate action on the part of the petitioner and there was some financial crisis arising from the regulatory issues and the investors were issued notices and informed that they will protect the interest of the investors. 6. Public Prosecutor opposed the bail application. Public Prosecutor submitted that huge amount was misappropriated by the petitioner. 7. Petitioner earlier filed a bail application before this Court under Section 483 of the BNSS itself. At that stage, this Court was not inclined to grant bail. Therefore, the petitioner was allowed to withdraw the bail application with liberty to move the bail application after two weeks. Accordingly, the present bail application is filed. Now, the petitioner is in custody from 29.01.2025 in connection with Crime No.23/2025 of Kalamassery Police Station. At that stage, this Court was not inclined to grant bail. Therefore, the petitioner was allowed to withdraw the bail application with liberty to move the bail application after two weeks. Accordingly, the present bail application is filed. Now, the petitioner is in custody from 29.01.2025 in connection with Crime No.23/2025 of Kalamassery Police Station. The arrest of the petitioner was recorded in Crime No.586/2024 of Elamakkara Police Station on 02.02.2025 and in Crime No.587/2024 of Elamakkara Police Station on 02-.02.2025. 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: “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. 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: “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". Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is 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. 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 them 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. 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. 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. 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.