IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 Bail Appl..No. 7393 of 2011() ----------------------------------------- CRIME NO.516/2011 OF VADANAPALLY POLICE STATION, THRISSUR DIST. ............ PETITIONER/ACCUSED ---------------------------------- ABDUL ARSHAD, S/O. SYED MUHAMMED, KOUSALLYA NAGAR, DESABHIMANI ROAD, ELAMAKKARA, COCHIN, ERNAKULAM DISTRICT. BY ADV. SRI.BABU S. NAIR, SMT.SHEEBA M.T., SRI.RAJESH P.A., SRI.RAKESH K. RESPONDENT/STATE --------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VADANAPALLY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. BY PUBLIC PROSECUTOR MR.V. TEKCHAND. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22/09/2011, ALONG WITH BA NO.7397 OF 2011 AND CONNECTED CASES, THE COURT ON 04/10/2011 PASSED THE FOLLOWING: rs K.T.SANKARAN, J. ---------------------------------------------------------------- Bail Appl. NOS.7393, 7397, 7401, 7402, 7403, 7404, 7405, 7406, 7407, 7408, 7409, 7410, 7411, 7412, 7413, 7414, 7415, 7416, 7417, 7420, 7421, 7422, 7423, 7424, 7425, 7426, 7427, 7428, 7429, 7430, 7431, 7432, 7433, 7484, 7485, 7486, 7487, 7488, 7489, 7490, 7491, 7492, 7493, 7494, 7495, 7496, 7497, 7498, 7499, 7500, 7501, 7502, 7503, 7504, 7505, 7531, 7532, 7533, 7534, 7535, 7536, 7537, 7546, 7547, 7548, 7549, 7550 & 7551 OF 2011 ---------------------------------------------------------------- Dated this the 4th day of October, 2011 O R D E R The petitioner in these Bail Applications, Abdul Arshad, seeks bail under Section 439 of the Code of Criminal Procedure. He is one of the accused in several crimes registered at different Police Stations. The petitioner was arrested on 11.6.2011 in one case and his formal arrest was recorded in several other cases. In some of the cases, formal arrest of the petitioner is not recorded. The learned Public Prosecutor submitted that in the crimes relating to three of the Bail Applications (B.A.Nos.7429 of 2011, 7485 of 2011 and 7548 of 2011), the petitioner is not made an accused. 2. The offences alleged against the accused are under BAIL APPL. NO.7393 OF 2011 AND CONNECTED CASES :: 2 :: Section 420 of the Indian Penal Code and Sections 3 and 4 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 (Central Act No.43 of 1978) (hereinafter referred to as “Prize Chits Act'). 3. The petitioner herein and some other accused persons had filed Bail Applications before this Court on an earlier occasion. Those Bail Applications were dismissed by a detailed order dated 12th August, 2011. (See ILR 2011(3) Kerala 856 = 2011 (3) KLT 796 = 2011(3) KHC 519 = 2011 (3) KLJ 715.) For the sake of convenience, paragraphs 4 and 5 of the order dated 12.8.2011 are extracted below: “4. The prosecution case is the following: Accused No.9 Abdul Arshad is the Managing Director of Bizarre Global Marketing Public Limited Company (hereinafter referred to as the Company). The Company was originally a Private Limited Company under the name Bizarre Marketing Systems Private Limited, which was incorporated on 2-11-2007. With effect from 18-6- 2008, the name of the Company was changed as Bizzare Global Marketing Systems Private Limited. The Company became a Public Limited Company with effect BAIL APPL. NO.7393 OF 2011 AND CONNECTED CASES :: 3 :: from 14-7-2008. The allegation is that the accused persons induced several persons to subscribe to the membership and to take shares in the Company. The promise extended was that if they take shares, they will get commodities at reduced rates from the Supermarkets to be established by the Company at different places in the State. It was also promised that if those who take shares canvass other persons to take shares, the former would be paid commission. Campaigns were held by the accused to induce persons to invest money. It was promised that those who canvass more persons would get more and more commission. About a lakh people were thus induced to invest money. In the Wynad District alone, more than five thousand persons were so induced to invest money. The promise given by the accused was that within two years, they would get about eight times the money invested by them. The accused indulged in money chain business under the pretext that they were floating shares of the Company. The investors did not get the returns or the money invested by them. The accused did not fulfill the promises and the investors were cheated. 5. The learned Public Prosecutor submitted that 36 cases were registered in Wynad District against the accused. Crimes were registered against them in other Districts also. It is submitted that the preliminary figures BAIL APPL. NO.7393 OF 2011 AND CONNECTED CASES :: 4 :: show that a sum of `120 Crores was collected from the investors. A raid was conducted in the office of the Company. Only one computer could be located in the raid. In the two bank accounts located, transactions of only `36 crores were found. It is necessary to find out where more than Rupees Eighty crores were siphoned off. The learned Public Prosecutor submitted that in brochure of the Company, a PAN Card number was shown. On investigation, it was revealed that the same relates to a firm in the State of Madhya Pradesh.” 4. The learned Public Prosecutor submitted that the cases registered against the petitioner and others have been distributed to the three Centres of CBCID, namely, at Kozhikode, Ernakulam and Kottayam. 5. Sri.Babu S. Nair, the learned counsel for the petitioner submitted that from 11-6-2011, the petitioner is in judicial custody. It is submitted that in 16 cases, default bail was granted. The counsel submitted that formal arrest of the petitioner was not recorded in several cases only to see that the petitioner remains in judicial custody for a long period, without getting the benefit of default bail under the proviso to Section 167 (2) of the Code of Criminal BAIL APPL. NO.7393 OF 2011 AND CONNECTED CASES :: 5 :: Procedure. It is submitted that the method that is being adopted by the investigating agency is to see that formal arrest of the petitioner is recorded in different cases on different occasions, so that even if default bail is granted in some cases, still, the petitioner can be detained in the other cases. 6. Sri.Babu S. Nair, the learned counsel for the petitioner also submitted the following : Only one Crime could be registered in the facts and circumstances of the case. In all the Crimes, similar allegations are made. The matters to be investigated and proved are also the same. The prosecution case is that the accused conducted a Money Circulation Scheme and they committed the offence under Sections 3 and 4 of the Prize Chits Act. The alleged money circulation scheme constitutes one project and the characteristics of the same are the same in all cases. Registration of several cases, in these circumstances, would be illegal. It would cause inconvenience and prejudice to the accused. The accused would have to defend several cases in different courts in respect of the same issue. Conflicting decisions would arise. It would also cause great prejudice to the defence to be taken by the accused. BAIL APPL. NO.7393 OF 2011 AND CONNECTED CASES :: 6 :: 7. Sri. V.Tekchand, the learned Public Prosecutor, submitted that there was nothing illegal in registering different Crimes. He submitted that Section 3 of the Prize Chits Act consists of different components, namely, (a) promote or conduct money circulation scheme; (b) enroll as a member to any such scheme; (c) participate in it; and (d) receive or remit any money in pursuance of such scheme. These are distinct and different and any one of them would constitute an offence. The allegations are not the same in the different cases registered and too against all the accused. It is submitted that there is no legal bar in registering separate Crimes. The proper course to be adopted is to register separate crime in respect of the case of each de facto complainant. The learned Public Prosecutor also submitted that the offence under Section 420 I.P.C. is also alleged in the cases. Offence under Section 420 is an independent offence and it is distinct and different in each case. 8. In State of Punjab and another v. Rajesh Syal (AIR 2002 SC 3687), proceedings were initiated in different Courts against the same accused. The allegation was that the accused collected huge amounts from members of the public. On maturity date, the amounts BAIL APPL. NO.7393 OF 2011 AND CONNECTED CASES :: 7 :: were not repaid. An application under Section 482 was moved before the High Court praying that all the cases instituted against the accused should be directed to be tried in one Court. The High Court allowed the application. The order of the High Court was challenged before the Supreme Court. The Supreme Court set aside the order of the High Court and held thus: “6. On a query being raised by this Court, the learned counsel for the respondent sought to rely on Ss.218 and 220 of the Cr.P.C. In an effort to justify his plea for the consolidation of the cases, Mr.Bali submitted that because of the proviso to S.218, even where there are distinct offences being tried the Magistrate can direct that the same be tried together. In our opinion, proviso to S.218 would apply only in such a case where the distinct offences for which the accused is charged are being tried before the same Magistrate. In the instant case, offences were being tried before different Magistrates and proviso to S.218 cannot give any single Magistrate the power to order transfer of cases to him from different Magistrates of Courts. Even S.220 does not help the respondent as that applies where any one series of acts are so connected together as to form the same transaction and where more than one offence is committed, there can be a joint trial. BAIL APPL. NO.7393 OF 2011 AND CONNECTED CASES :: 8 :: 7. In the present case, different people have alleged to have been defrauded by the respondent and the Company and, therefore, each offence is a distinct one and cannot be regarded as constituting a single series of facts/transaction.” 9. Several cases have been registered at different police stations against the petitioner and the other accused. Those Crimes were registered on the basis of information given to the police by the persons who were prejudicially affected by the money circulation scheme. The grievance of each person would constitute a distinct offence. A crime can be registered on the basis of the information given to the police by the aggrieved person or on the basis of a complaint forwarded to the police under Section 156 (3) of the Code of Criminal Procedure. The Code of Criminal Procedure does not contain any provision to indicate that all such aggrieved parties should join together and file a complaint; or if a Crime is registered by the police on the information given by any of them, all the aggrieved persons should be treated as de facto complainants in such crime. Chapter XVII of the Code of Criminal Procedure does not envisage such a procedure. BAIL APPL. NO.7393 OF 2011 AND CONNECTED CASES :: 9 :: 10. As rightly submitted by the learned Public Prosecutor, Section 3 of the Prize Chits Act contains several components. Some of the accused are promoters, while some others are persons alleged to have collected money from subscribers on making false promises. The role played by the accused in all the cases is not the same. The offences allegedly committed by the accused in the different Crimes do not constitute part of the same transaction. 11. Moreover, in the present case, offence under Section 420 of the Indian Penal Code is also alleged. The offence of cheating of particular individuals in each case is distinct and different. There is nothing to indicate that all the cases form part of the same transaction. Each case constitutes distinct transaction. 12. For the aforesaid reasons, I am not inclined to accept the contention put forward by the learned counsel for the petitioner that a single Crime should have been registered. 13. It is true that in some of the cases, formal arrest of the petitioner is not recorded. In Biju V. S.I. of Police: 2009 (4) KLT 778, it was held thus: BAIL APPL. NO.7393 OF 2011 AND CONNECTED CASES :: 10 :: “The fact that a person is involved in several crimes and he is in judicial custody in one of the crimes does not mean that he is in judicial custody in all the crimes, unless his arrest is recorded in those cases. That the accused was in judicial custody in one crime and that the other crimes were registered at such point of time is not a ground to hold that he must be deemed to be in judicial custody in all the crimes. The release of the accused on bail in one case, therefore, cannot be treated as a bar for his arrest in the other cases. Therefore, I am not inclined to accept the contention of the petitioner that the petitioner is not liable to be arrested at this point of time.” 14. The petitioner is in judicial custody from 11-6-2011. It is also true that even if the petitioner gets default bail in some cases, he may not be able to get out of the jail, if bail is refused to him in the other cases on recording his arrest in the meanwhile in those cases. That by itself is not a ground to grant bail to the petitioner at this stage. That may be a relevant factor while considering the bail applications in those cases where arrest is recorded subsequently. 15. If the petitioner is released on bail at this stage, it would adversely affect the proper and smooth investigation of the case. BAIL APPL. NO.7393 OF 2011 AND CONNECTED CASES :: 11 :: The chances of the witnesses being harassed, influenced or intimidated, if the petitioner is granted bail, cannot be ruled out. It is also most likely that the petitioner may make himself scarce, if bail is granted to him. For the aforesaid reasons, the Bail Applications in respect of the cases in which arrest of the petitioner was recorded, are dismissed. The Bail Applications relating to the crimes in which the arrest of the petitioner is not recorded, are closed. The Bail Applications relating to the crimes in which the petitioner is not made an accused, are also closed as unnecessary. (K.T.SANKARAN) Judge ahz/