IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 Bail Appl..No. 4419 of 2008() ----------------------------- CMP.1279/2008 of JUDL.M.F.C.-I,ERNAKULAM IN CRIME NO.88/CR/EKM/2008 CBCID, ERNAKULAM IN CRIME NO.666/2008 OF ERNAKULAM TOWN NORTH POLICE STATION PETITIONER/ACCUSED ----------------------------------- R.GIREESH, S/O.LATE RAJAN, PULIYANEZHATH HOUSE, BEHIND AYYAPPANKAVU TEMPLE, ERNAKULAM VILLAGE, ERNAKULAM. BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.ALAN PAPALI SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA RESPONDENT: COMPLAINANT] ------------------------- STATE OF KERALA (DEPUTY) SUPERINTENDENT OF POLICE, CBCID SIG-III, ERNAKULAM) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY D.G.P.SRI. P.G.THAMPI PUBLIC PROSECUTOR SRI C.K.SURESH THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A.No. 4419 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of July, 2008 O R D E R Application for bail. 2. Petitioner is the 2nd accused in the crime, which was registered suo motu by the police under section 406 IPC. During the course of investigation, it is revealed that the petitioner is also involved in the offence and he was implicated as 2nd accused. Sections 120 B, 465, 468, 471, 477 and 34 IPC were also incorporated and the investigation is going on. 3. According to the prosecution, the 1st accused registered a charitable society on 29-10-2003 with his parents, brother, sister-in-law and other close associates as its members. Later, he created false documents by which bye-laws of the society were amended to oust one of the members from the post of the Secretary. He also made himself the sole authority who could open and operate bank accounts in the name of the society, as its president. He visited foreign country and posing himself as Godman, lured NRIs to take membership in the society. Several persons took membership in the society and huge amount of money came in to the society's fund. BA 4419/08 -2- 4. Later, the 1st accused started misappropriating the funds of the society by investing into real estate business. The fund of the society was not actually intended for such business. The 1st accused made huge amount as profit out of such business and started purchasing properties in his own name and also in the name of others who are his close associates as benami. Properties were purchased by the 1st accused in the name of the petitioner also using the funds of the society. Such properties were sold with the alleged active assistance of the petitioner and he was also given Rs.10 lakhs, as part of the profit received in connection with the property deal. According to the prosecution, the petitioner knowingly and in collusion with the 1st accused conspired to commit the offences and all the offences alleged are committed by both of them in furtherance of their common intention. 5. The learned counsel for the petitioner submitted that the petitioner is only an architect by profession. He hails from a reputed family and he has not committed any of the offence as alleged. Except that he had acquaintance with the 1st accused and he had been meeting him in connection with his profession and astrological predictions, he has no role in the alleged offences. He was also moving around with the 1st accused, but he is not in any way connected with the property transaction. Referring to the allegation that the properties were purchased in the name of the BA 4419/08 -3- petitioner, it is submitted that such purchase can be made, even without the knowledge of the petitioner because, no signature of the assignee is to be obtained for executing any sale deed. Even without the knowledge of the assignee, any property can be purchased. Therefore, only because of the property is purchased in the name of the petitioner, no criminal liability can be attached to the petitioner, it is submitted. 6. It is also argued that offence committed is mainly under section 406 IPC. The allegation is that the fund of a registered charitable society has been misappropriated. The petitioner has absolutely nothing to do with the funds or the society. He is not a member and not even any office bearer of the society. He has absolutely no connection with the society and hence he cannot be made liable for offence under section 406 IPC. 7. It is also argued that offence under section 477 IPC will not be attracted in this case going by the language of the said provision. The allegation is that the petitioner had destroyed a copy of an agreement allegedly executed by one of the owners of the property to whom the 1st accused had sold the property, which fetched a huge amount, as profit. According to the prosecution, only the copy was available with the 1st accused and such copy was allegedly destroyed. But such a document does not fall under section 477 IPC, it is submitted. Section 477 relates to BA 4419/08 -4- destruction of valuable security, will etc. and an agreement of the nature involved in this case will not come under section 477IPC. It is also contended that none of the offences alleged against the petitioner prima facie is attracted against the petitioner. 8. Learned counsel for the petitioner also pointed out that the petitioner is in custody from 16-6-2008 onwards. He was questioned on various dates, 13-6-2008, 14-6-2008, 15-6-2008 and 16-6-2008 and thereafter he was released to police custody by the learned Magistrate. Thus, the petitioner was exhaustively questioned and he has nothing more to say to the police and hence no purpose will be achieved by the further detention of the petitioner, it is submitted. 9. It is also pointed out that no complaint was filed by any member of the society and nobody has made any complaint against the 1st accused or the petitioner. But, the whole investigation is conducted on the basis of a crime which was registered suo motu by the police. If the fund of the society is misappropriated, it is for the members or somebody connected with the society to make a complaint, but in the absence of such a complaint, it will be highly improper to detain the petitioner in custody unnecessarily, it is submitted. BA 4419/08 -5- 10. This application is strongly opposed. According to the learned Director General of Prosecution, there are more than sufficient materials in the case diary to reveal the close association of the petitioner with the 1st accused. The petitioner has not only been moving around as a mere associate, but he had clear and specific role in almost all the major transactions relating to the property deal in which the 1st accused was involved. It cannot be said that an innocent architect is dragged into the crime only because happened to be an associate of the 1st accused in connection with astrology or his profession, it is submitted. The materials so far collected would strongly indicate that the petitioner had been involved in the property deal by misusing funds of the society and he had also been aiding the 1st accused in many of the deals and even attempting to shield him from the criminal prosecution. It was in such an attempt that the petitioner destroyed a copy of the agreement, though it was futile since the original can be easily procured. The conduct of the petitioner becomes relevant in this context and this itself is an incriminating circumstance to connect him with the activities of the 1st accused which were committed in conspiracy with each other, it is submitted. 11. The learned Director General of Prosecution also pointed out that the petitioner was questioned only on 15-6-2008 and not on any BA 4419/08 -6- previous dates as alleged. Since questioning was not exhaustive on that day, he was repeatedly questioned on other occasions also and it is pertinent to note that on all occasions, fresh materials have come out from his statement which are helpful to the investigation. It is also submitted that the 1st accused purchased the property in the name of the petitioner as a benami transaction, but it was not without his knowledge. The property was sold thereafter and the petitioner himself had to execute document in connection with the sale and it cannot be said that the purchase and the sale were done behind his back and without his knowledge. He had not raised any little finger against the benami transaction, but accepted Rs.10 lakhs out of the profit in property transaction. All these are to be investigated into in further detail and the release of the petitioner at this stage will stand in the way of an effective investigation. Investigation is going on regarding the further involvement and role of the petitioner in the various alleged activities relating to the property transaction, it is submitted. Two cheques were issued in the name of the petitioner by the 1st accused and those were encashed also by the petitioner. The money has gone from the account of the society, it is submitted. 12. Learned Director General of Prosecution also submitted that the 1st accused is very powerful and highly influential and hence nobody came BA 4419/08 -7- forward even to file any complaint against him until he was arrested in connection with another crime. Criminal activities were carried on by the 1st accused without any hindrance or any murmur from any quarter and hence police was forced to register a case suo motu. Several other crimes were also registered against the 1st accused. It was only when the 1st accused was arrested in connection with a complaint lodged by an N.R.I. in the year 2003 that the criminal activities of 1st accused were brought to light. Even after the lapse of so many years of lodging that complaint, the 1st accused could not be arrested because of the influence and strong support which 1st accused could gain. It is only on questioning the 1st accused and on his confession that commission of series of crimes by him came out. In such circumstances, the registration of the crime suo motu against the 1st accused for misappropriation of the funds of the society cannot be criticized as having been done with ulterior motive, with a view to concoct any false case against the 1st accused. Nobody came forward to make any complaint and hence the police was forced to register the crime on the basis of the materials collected during the investigation in connection with other crime, it is submitted. 13. It is therefore submitted that taking into account the peculiar circumstances, it is highly necessary that the petitioner is kept in custody BA 4419/08 -8- because, his release on bail is likely to affect investigation, since petitioner may destroy whatever evidence may be available relating to the crime. In the nature of the investigation required in the peculiar facts and circumstances of this case, the release of the petitioner will adversely affect the investigation, it is submitted. It is revealed in the course of investigation that the 1st accused was harboured when there was publication in the media about his activities and this was with the knowledge of the petitioner and more details are yet to be investigated into, it is submitted. The actual role of the petitioner in the transactions is to be found out and hence it may not be proper to release the petitioner on bail at this stage of investigation in a case of this nature, it is submitted. 14. On hearing both sides, I find that on a deep analysis of section 477 IPC, prima facie, it may be a probable defence that the document involved in this case may not fall under section 477 IPC . So also regarding the misappropriation of fund of the society, the aggrieved persons may be a member of the society and people alike. But, criminal law can be set in motion by any person and it is not necessary that it should be the basis of any complaint by an aggrieved person. At this stage of investigation, it will be too premature on the part of this Court to analysis ingredients of various offences and come to a conclusion whether the alleged offences are made BA 4419/08 -9- out or not, technically. Even if a mistake is committed by the investigating agency in including a particular section of an offence at this stage, ultimately when the charge is laid, the provision can be altered at any time. What is relevant are the nature of the allegations made and the question is whether those are absolutely baseless. 15. It appears from the case diary that the petitioner and the 1st accused were moving in hand and glove with each other and it may also appear that the petitioner was working not merely as an architect by carrying out any architectural works for the 1st accused. He has some other complicities, which are yet to be investigated into detail. There are transactions in which foul play is strongly suspected and the extent of the involvement of the petitioner is a fact which requires deeper scrutiny. A detailed investigation would be required to bring out the intricacies and the nature of involvement of not only the petitioner and the 1st accused, but certain others also. Hence, at this stage of investigation, it may be improper on the part of this Court to analyze various ingredients of the alleged offences in detail and to enter into any finding on those aspects, either way. Considering the nature of allegations made and the peculiar facts and circumstances of the case, I am satisfied that the release of the petitioner on bail at this stage will adversely affect the investigation. A BA 4419/08 -10- smooth investigation is required in this case without any hindrance, for which, release of the petitioner may not be quite conducive. Hence, the application is dismissed. K. HEMA, JUDGE. mn.