IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 Bail Appl..No. 4262 of 2008() ----------------------------- CRIME NO.897/08 OF CENTRAL POLICE STATION PETITIONER ----------------- SANTOSH MADAVAN, S/O. MADAHAVAN PAYYIL CHIRAYIL HOUSE, IRUPATHEKAR KARA, KATTAPANA, IDUKKI. BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) SRI.PRADEESH CHACKO SRI.A.RAJASIMHAN RESPONDENTS: ------------- 1. SUPERINTENDENT OF POLICE, CRIME BRANCH, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE, ERNAKULAM. 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY DIRECTOR GENERAL OF PROSECUTION SRI.P.G.THAMPI PUBLIC PROSECUTOR SRI.C.K.SURESH THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.4262 of 2008 ----------------------------------------- Dated this the 3rd July, 2008 O R D E R This petition is for bail. 2. Petitioner is the first accused in the crime. The crime was registered under Section 420 of Indian Penal Code, on the basis of an E-mail complaint, sent by the de facto complainant to the Inspector General of Police, Kochi City. As per the allegations in the complaint, in the year 2002, the first accused was in Dubai and he cheated the de facto complainant of 4 lakhs Dirhams, under the pretext of opening a hotel. But, after receiving the money, he absconded from Dubai with the money, leaving no trace of him or information about his whereabouts. 3. Petitioner was arrested on 30.5.2008 and he is in custody since then. According to learned counsel for petitioner, much sensation is created by media in this case and BA.4262/08 2 this Court may not be carried away by such sensations. The complaint is too cryptic and without any relevant details. There is inordinate delay in lodging the complaint. No reason is assigned for the delay. The incident allegedly occurred in the year 2002 but the complaint was lodged only in 2008, that too by sending an E-mail to the Inspector General of Police. The complaint is bereft of any details. The place or places from where the amount was given to the first accused, the date and time when it was given etc. are not mentioned in the complaint. It was also submitted that as per the present case, various other accused are also involved in this crime and Section 34 IPC is added. But, nothing is mentioned about the involvement of other accused in the First Information Statement. Therefore, it is strongly contended that the facts are shaped, modulated and developed from time to time at the whims and fancies of police officials, based on the reports of media, but the allegations made against petitioner are absolutely baseless. BA.4262/08 3 4. Learned counsel for petitioner also stated that the petitioner is having only a small extent of property in his name. He is only an Astrologer, engaged in real estate business also. He is conducting a guest house by name “Shanthi Theeram” but it is now depicted as an “ashramam”. An attempt is made by the investigators and media to picturize petitioner as a Sanyasi, who is highly immoral, but petitioner is a newly married person, and the allegations made against him are baseless. At any rate, his detention in the jail will not, in any manner, help the investigation. 5. It is also requested that this case may be treated as any other case in which offence of cheating is involved, and even if the entire allegations are accepted there is no ground to refuse bail to the petitioner. The petitioner is prepared to abide by any conditions. He is prepared to report before the investigating officer on every day. The passport having been taken away by the police, there is no chance of the petitioner to leave this country. 6. It is also submitted that various other crimes are BA.4262/08 4 also registered against the petitioner, but pendency of investigation in other crimes may not be made a ground to detain the petitioner in this present case. Each case has to be independently considered, on the basis of the materials available in each case and the investigation pending in the other cases, shall not stand in the way of his being released on bail on any stringent condition, as this Court may deem fit and proper, it is submitted. 7. Learned counsel for petitioner also pointed out that the crime was registered as early as in May, 2008 and more than one month has elapsed now. The complainant was questioned on several occasions. Practically the investigation is completed. It is also submitted that even if the whole allegations are accepted, he has not committed any brutal murder or other offence which will shock conscience of the society. The allegations against him are cheating, rape etc. but, in no case brutality has been alleged. The offence now alleged against the petitioner cannot be taken seriously so as to refuse bail to the petitioner, it is submitted. BA.4262/08 5 8. According to learned counsel for petitioner, the allegations made are highly improbable. The falsity of the complaint will be revealed from the fact that the petitioner was visiting Dubai only on visiting viza and he is not a resident of Dubai, because it is highly improbable that a lady like the de facto complainant would part with a huge amount of Rs.40 lakhs without confirming the whereabouts of the petitioner. It appears from complaint that the de facto complainant is not aware of the whereabouts of the petitioner. But, in spite of this, she allegedly gave huge amount of money. This is highly unbelievable, it is submitted. The capacity of the de facto complainant to part with such huge amount also is a factor to be looked into. In short, the case set up by the de facto complainant is highly improbable and hence on this ground the petitioner may be granted bail, it is submitted. 8. Learned counsel for petitioner further submitted that the petitioner was given in police custody for six days. He is questioned thoroughly by the police. Whatever possible is extracted from him and detention of the BA.4262/08 6 petitioner, therefore, may not be required for the purpose of investigation. The apprehension of the investigators that the petitioner would influence witnesses may not be made a ground to refuse bail to the petitioner because, going by the allegations made by the respondent, if he is so influential, his physical presence outside the jail may not be required for the purpose of influencing witnesses or to tamper with evidence. Hence it is requested that the petitioner may be granted bail on stringent conditions. 10. This petition is strongly opposed. Learned Director General of Prosecution submitted at the very outset that the second accused in the same crime was refused bail by this Court, as per order dated 20.6.2008 in B.A.No.3922 of 2008. The main offender is the first accused, who is the petitioner herein and hence bail may not be granted to him. The learned Director General of Prosecution submitted that in the peculiar facts and circumstances of the case, it cannot be said that there is a delay. The incident happened in 2002 and the petitioner absconded after procuring money from the de facto BA.4262/08 7 complainant and without much delay, the de facto complainant lodged a complaint before the Dubai Police in 2003 itself. It has to be borne in mind that the transaction took place in Dubai and the de facto complainant is also residing in Dubai and hence, it is only natural for the complainant to lodge a complaint before the Dubai Police. But, nothing much transpired and the de facto complainant did not fetch any desired result by lodging the complaint before the Dubai Police for some reason or other. She was pursuing the possible remedy in her own way. 11. The Dubai Police transferred the file to the Interpol and even the number of the file is mentioned by the de facto complainant in the E-mail complaint sent to the IG of Police. According to her, complaint made by her is umbered as file No.2485/03. Red alert notices were issued by the Interpol against the petitioner from Dubai. Photographs of the petitioner were published as “wanted criminal” in connection with the complaint made by the de facto complainant in the year 2003. Since there was no much of a progress, the de facto complainant sent the E- BA.4262/08 8 mail complaint to the IG of Police in 2008. 12. In an offence like this, where the accused was absconding and the whereabouts of the accused were not known to a lady in Dubai, the lady having filed a complaint before the Dubai Police and pursuing her remedy all these years, it cannot be said that she was keeping silence in the matter. Since she made the allegations as early as in 2003, it cannot be said that she was fabricating a belated story at a belated hour. The E-mail message is of course cryptic, but those were sufficient to register a crime and hence a crime was registered, it is submitted. 13. The de facto complainant came down to India and she was questioned by the police in detail. The questioning revealed the manner in which the amount was given to the petitioner. It was given in cash as well as by way of cheques. The account details of the de facto complainant were taken by the police and the case diary contains all such details. Witnesses connected to these transactions are all at Dubai, since the transactions took place at Dubai. Because of the distance and various other reasons, it is not BA.4262/08 9 possible to get all the witnesses for interrogation without delay. But the police is questioning the witnesses from Dubai one after the other. From the materials so far collected, it is revealed that there is merit in the complaint and hence, understanding the seriousness of the crime, the investigation has now been transferred to the CBCID under orders from the authorities concerned. 14. It is also submitted by the learned Director General of Prosecution that after transferring the crime to the CBCID, they require the petitioner's presence for interrogation. Some more materials have to be collected by questioning the accused in custody. Steps are already taken for getting the custody of the petitioner by the police and a petition is filed before the Magistrate Court concerned and the same is pending consideration. Several documents are to be seized from Dubai and steps are being taken for seizure of the same. In such circumstances, if the petitioner is released on bail at this stage, it will adversely affect the investigation, it is submitted. BA.4262/08 10 15. According to learned Director General of Prosecution, the petitioner is highly influential. It is not as if he is a mere professional Astrologer with a small extent of property. The investigation reveals that he is doing real estate business and dealing with huge amount of money. On the basis of the materials already collected, it cannot be said that the complaint is absolutely baseless. Considering the huge amount of money involved in this case and taking into consideration the manner in which the offences committed against a non-resident Indian lady, it is submitted that granting of bail to the petitioner will result in great injustice. 16. On hearing both sides, I find that the contentions raised by the petitioner regarding delay in complaint, the cryptic nature of the First Information Statement, the merit of the complaint etc. are all answered by the learned Director General of Prosecution. It is revealed from the arguments advanced that the investigation is only at the initial stage. Since the witnesses are abroad, it is only reasonable to infer that some time will be for completing BA.4262/08 11 the investigation. There will be various practical difficulties in completing investigation in a case where the offence is committed abroad on different dates. I also bear in mind that a petition is filed by the CBCID before the Magistrate Court for getting custody of the petitioner for interrogation. I am satisfied, as it appears from the facts and circumstances of this case that custodial interrogation of the petitioner will be required for revealing the intricacies and complicity of the petitioner and various other details relating to the complaint. 17. It is to be borne in mind that the complaint is registered only against the first petitioner. But during the investigation, the involvement of other accused was also revealed. Taking all these facts into consideration, I find that this is a case where investigation has to be continued in full swing and for proper and smooth investigation, detention of the petitioner would be essential. If the petitioner is released on bail at this stage, it may affect the investigation adversely. Even if bail is granted on stringent conditions, according to learned Director General of BA.4262/08 12 Prosecution, it is likely that the petitioner may influence the witnesses and tamper with evidence. On hearing both sides, I find that such a possibility cannot be ruled out. The physical presence of the petitioner outside the prison may have some impact and I am satisfied that the personal liberty of the petitioner is to be restricted for a just cause, for felicitating an effective investigation in this case. This petition is dismissed. K.HEMA, JUDGE vgs.