IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 Bail Appl..No. 6816 of 2008() ----------------------------- CMP.4548/2008 of C.J.M.,TRIVANDRUM (CRIME NO. 480/2008 OF MEDICAL COLLEGE POLICE STATION) PETITIONER/1ST ACCUSED ------------------------------------------ SABARINATH, S/O.RAJAN, AGED 20 YEARS 'SABARI NIVAS', OPP. SARADA NIVAS LIBRARY, KONDAGAVILA, ATHIYANNUR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DIST. BY ADV. SRI.P.G.THAMPI (SR.). SRI.V.GOPIKRISHNA SRI.G.PRIYADARSAN THAMPI RESPONDENT(S): COMPLAINANT -------------------------- THE DEPUTY SUPDT. OF POLICE, CBCID., THIRUVANANTHAPURAM REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF ] KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25/11/2008 ALONG WITH B.A.NO.6782/08, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- Bail Appl.Nos. 6816 & 6782 of 2008 --------------------------------------------------- Dated this the 25th day of November, 2008. ORDER Petitions for bail. 2. Petitioner in B.A.No.6816 of 2008 is the first accused and petitioner in B.A.No.6782 is the 5th accused in the same crime. According to prosecution, first accused was running some financial institutions like NEST, Metlife, Total 4 You etc. in some part of Trivandrum city along with others and they have induced certain persons by fraudulent representations, offering very high rate of interest and other monetary benefits, and made them to deposit huge amount of money. Later, neither money nor interest were paid to depositors. Fifth accused is the father of first accused and offences were committed by him also in furtherance of common intention. The alleged offences are under Sections 420, 406, 409, 120B and 34 of IPC. 3. Learned counsel for petitioners submitted that petitioners are in custody for more than 60 days. The first accused was arrested on 2.9.2008 and 5th accused was arrested on 10.9.2008. Their continued detention may not be necessary for the purpose of investigation in this case, it is submitted. Learned counsel for petitioners also submitted that offence under Section 409 IPC is not attracted in this case, going by the language of section. The accused are in custody for the past more than 60 [B.A.Nos.6816 & 6782/08] 2 days and they are entitled for bail by default under the proviso to Section 167(2)(ii) Cr.P.C. it is submitted. According to learned counsel for petitioner, offence under section 409 IPC is triable by a Magistrate and the punishment is for 10 years and fine etc. 4. Learned counsel for petitioners submitted that no further detention can be made in the light of the proviso to section 167(2) Cr.P.C.,since petitioners have completed more than 60 days of detention and charge-sheet has not been filed so far. Going by the provision contained in Section 409 IPC and the punishment prescribed therein, the accused cannot be detained in prison beyond the period of 60 days and hence, petitioners may be granted bail, it is submitted. 5. Learned counsel for petitioners submitted that under Section 167(1) Cr.P.C. if the investigation cannot be completed within twenty-four hours and there are reasonable grounds for believing that that the accusation or information is well-founded, the officer referred to in the section shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary relating to the case as prescribed in the provision along with the accused. In this case, entries in the diary are not furnished by the investigation, it is submitted. 6. This petition is strongly opposed. Learned Public Prosecutor submitted that the crime was registered on 27.8.2008 and it is revealed in investigation that forged documents were used by accused to make it appear that huge deposits to the tune of Rs.50 lakhs are available in the name of the accused etc. [B.A.Nos.6816 & 6782/08] 3 and that they have the required authorisation to conduct the establishment etc., to persuade and deceive depositors. 7. It is also submitted that 19 cars were purchased by using money which was collected as deposits which include a car worth Rs.38 lakhs also. The first accused was living in luxury and his table coat itself is worth Rs. 3 lakhs. and table is worth Rs. 2 lakhs. The first accused is only a 20 year old uneducated boy. The 5th accused is only a Class IV employee, who was owning only 10 cents of property, but Rs.30 lakhs were used for renovating his house. It is also submitted that Insurance policy worth Rs. 74 crores were taken in the name of accused and others using the money of the depositors. It also appears from investigation that accused have deposits outside India also and investigation is conducted deep into the various allegations. 8. It is also submitted that day by day, several persons are coming forward with fresh complaints against petitioners. Laptop, computer, Pendrive etc. are sent for examination and report by experts. In the meanwhile, if the petitioners are released on bail, it is likely that it will adversely affect the investigation. Petitioners may influence witnesses or tamper with evidence and it is also likely that they may abscond. Therefore, it is not a fit case to grant bail to petitioners at this stage of investigation considering the allegations made, it is submitted. 9. Learned Public Prosecutor strongly argued that offence under Section 409 IPC is clearly attracted. Any agent receiving money on behalf of principal and fraudulently misappropriating it commits offence punishable under Section [B.A.Nos.6816 & 6782/08] 4 409 IPC, as revealed from the decision reported in Som Nath v. State of Rajasthan (AIR 1972 SC 1490), it is submitted (Vide AIR 1962 SC 1821). It is also submitted that on the basis of the decision reported in Bhupinder Singh v. Jarnail Singh (2006 (4) KLT 460 (SC) that as per the dictum laid down in the said decision, the relevant period of remand would be 90 days and not 60 days, in a case involving offence under Section 409 IPC. 10. Learned Public Prosecutor submitted that in a case under section 409 IPC, the punishment ranges between 10 years imprisonment to life imprisonment and what would be the adequate punishment has to be decided by the court on the basis of the facts of the case involved in the particular case and the stage of imposing a sentence comes only after the conviction. The offence under Section 409 IPC is punishable to a term upto imprisonment for life and it cannot be said that only minimum sentence is to be imposed. Merely because minimum sentence is provided, it does not mean that sentence imposable is only minimum sentence, particularly for the purpose of availing the benefit under the proviso to Section 167(2) Cr.P.C, it is submitted. 11. Learned Public Prosecutor also pointed out that “diary” referred to in section 167(1) does not mean of the entire case diary which includes, all statements of witnesses etc., but it is only the diary of proceeding in investigation, as referred to in section 167(1) of Cr.P.C. The details regarding the time and place of visit made by investigating officer, the time at which he began and close the investigation and statement of the [B.A.Nos.6816 & 6782/08] 5 circumstances ascertained through investigation are required to be forwarded to the court under Section 167(1) Cr.P.C. till such details are stated in the remand report filed in this case before court from time to time. It is not correct to say that such details are not furnished to the court, it is submitted. 12. On hearing both sides and considering the nature of allegations made and the stage of investigation, I find that it is not fit to grant bail to petitioners at this stage. If the petitioners are released on bail, it is likely that they will tamper with evidence or influence or intimidate witnesses, especially since several complaints are lodged against them one after other. For the purpose of an effective investigation into the crime, expert opinion is to be obtained and relevant materials are already sent for expert opinion and report is awaited. At this stage of investigation, if the petitioners are released on bail, it is likely that investigation will be adversely affected. 13. Though bail is the rule and jail is only the exception, the court has also a duty to see that a proper investigation is conducted into the crime. The evidence collection takes place at the stage of investigation and if does not take place smoothly the victims of offence would become another victim at the hands of the court also. In a case of this nature, where the facts are complicated and involves deep investigation into various aspects, if the petitioners are released on bail and it is likely to hamper the investigation, the court would be justified in refusing bail to accused. On going through the dictum laid down in the decisions cited by learned Public Prosecutor, I find that the [B.A.Nos.6816 & 6782/08] 6 relevant period of detention in this case would be 90 days and not 60 days and this case falls under Section 167(2)(a)(i) Cr.P.C. Thus, on hearing both sides, I am not inclined to grant bail to petitioners at this stage. Petitions are dismissed. K. HEMA, JUDGE. Krs.