IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 Bail Appl..No. 2845 of 2009 CRIME NO.28/2009 OF CBCID,THIRUVANANTHAPURAM (CRIME NO.12 OF 2009 OF VANCHIYOOR POLICE STATION) CMP.2521/2009 of ADDL.C.J.M.,TRIVANDRUM .................... PETITIONER/10TH ACCUSED: -------------------------------------------- PRAMOD ISSAC, S/O.ISSAC, KAROOR BHAVAN, VETTIKODE, BHARANIKAVU, MAVELIKKARA, ALAPPUZHA DISTRICT. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.SURYA SASI RESPONDENTS: STATE & COMPLAINANT: ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DETECTIVE INSPECTOR, CBCID, THIRUVANANTHAPURAM. DIRECTOR GENERAL OF PROSECUTION SRI.V.G.GOVINDAN NAIR PUBLIC PROSECUTOR SRI.C.K.SURESH THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04/06/2009 ALONGWITH B.A.NOS.2846 AND 2853 OF 2009, THE COURT ON 08/06/2009 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. Nos.2845, 2846 & 2853 OF 2009 ------------------------------------------------------ Dated this the 8th June, 2009 O R D E R Pramod Issac, who is accused No.10 in Crime No.28 of 2009 of CBCID, Thiruvananthapuram, who is also accused No.5 in Crime No.201 of 2008 and accused No.4 in Crime No.169 of 2008, seeks bail under Section 439 of the Code of Criminal Procedure. Accused No.1 in these cases is one Sabarinath, who is the Managing Director of the financial institutions, namely, “Nest Investment Solutions”, “INEST”, “Total 4 U” etc. It is alleged that the accused persons induced more than one thousand of depositors by fraudulent representations offering very high rate of interest and other monetary benefits, which prompted the depositors to deposit huge amounts of money in the aforesaid financial institutions. It is also alleged that after amassing wealth by misappropriating money of the depositors, the accused persons closed down the institutions and absconded. Several depositors approached the police. Initially, the case was registered at the Medical College Police Station in August, 2008. In view of the serious nature of the offence involving crores of rupees B.A. NOS.2845, 2846 & 2853 OF 2009 :: 2 :: belonging to the general public, the case was transferred to the Crime Branch CID for investigation. It is stated that the Crime Branch Unit, Thiruvananthapuram took up the investigation in September, 2008. The scam is popularly known as “Total 4 U scam”. 2. In Crime No.169 of 2008, the offences alleged against the petitioner are under Sections 120(B), 109, 406, 409, 420, 465, 468, 471, 202 and 212 of the Indian Penal Code and Sections 45(S) and 58(B) of the Reserve Bank of India Act. In Crime No.201 of 2008, the petitioner is accused of having committed offence under Sections 120(B), 406, 409 and 420 read with Section 34 of the Indian Penal Code. In Crime No.28 of 2009, the offences alleged against the petitioner are under Sections 120(B), 403, 406 and 420 read with Section 34 of the Indian Penal Code. 3. Learned Director General of Prosecution submitted that the petitioner moved an application for anticipatory bail before the High Court in B.A.No.6116 of 2008. While dismissing that Bail Application, this Court directed the petitioner to report before the Investigating Officer within twenty days from 7.10.2008. The B.A. NOS.2845, 2846 & 2853 OF 2009 :: 3 :: petitioner did not comply with that direction. He surrendered before the Investigating Officer only on 18.4.2009 and he was arrested in Crime No.169 of 2008. The petitioner is in judicial custody since then. His formal arrest was recorded on 27.4.2009 in Crime No.201 of 2008 and on 7.5.2009 in Crime No.28 of 2009. 4. Learned counsel for the petitioner submitted that the petitioner was appointed as Security Supervisor of Nest Investment Solutions on 23.11.2007. On 16.12.2007, he was appointed as the Manager-in-charge of Total 4 U. On 16.3.2008, the petitioner was appointed as the Private Secretary to Sabarinath, the Managing Director . The counsel pointed out that on 13.8.2008 the petitioner left the employment and thereafter he has no connection with the financial institutions referred to above. The petitioner contends that he has not committed any offence, that he is in no way connected with collection of money from the depositors and that he had not received any commission for canvassing deposits as alleged by the prosecution. It is pointed out that even the father of the petitioner had deposited a sum of Rs.3 lakhs in one of the financial institutions. The counsel for the petitioner submitted that the petitioner is in judicial custody since 18.4.2009. The investigating officer B.A. NOS.2845, 2846 & 2853 OF 2009 :: 4 :: interrogated the petitioner, on getting an order from Court for custody. It is submitted that there is no reason to detain the petitioner further. The counsel submitted that any condition may be imposed for releasing the petitioner on bail. 5. The learned Director General of Prosecution submitted that if the petitioner is released on bail, there is every chance of evidence being tampered and the witnesses being intimidated or influenced. There is also every likelihood of the petitioner making himself scarce and fleeing from justice. It is pointed out that hard earned money belonging to hundreds of persons, including that of middle class and lower middle class people, was deposited in the financial institutions referred to above. The depositors were attracted by the very high rate of interest offered. It is stated that the scam involves more than Rs.50 crores. The decision of the Supreme Court in Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director (AIR 2007 SC 451) and of the Kerala High Court in State of Kerala v. Sugathan (1987 (2) KLT 985) were relied on by the Director General of Prosecution. 6. Learned counsel for the petitioner put forward yet another B.A. NOS.2845, 2846 & 2853 OF 2009 :: 5 :: contention. He submitted that by the ingenious method adopted by the investigating agency, the petitioner is even denied the benefit of Section 167(2) of the Code of Criminal Procedure as the date of recording of arrest in the successive cases was made on later dates, though the arrest was actually made several days ago in connection with one of the cases. He relied on the decision of the Supreme Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J.Kulkarni (AIR 1992 SC 1768). Learned counsel for the petitioner submitted that “bail” is the rule and “jail” is an exception. Contradicting this, learned Director General of Prosecution submitted that the grant of bail depends on the facts and circumstances of each case and the duration of judicial custody is not always the criterion for granting bail. 7. In State of U.P. v. Amarmani Tripathi ((2005) 8 SCC 21), it was held thus: “It is well settled that the matters to be considered in an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and B.A. NOS.2845, 2846 & 2853 OF 2009 :: 6 :: gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding of fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati v. NCT, Delhi ((2001) 4 SCC 280: 2001 SCC (Cri) 674)) and Gurcharan Singh v. State (Delhi Admn.) ((1978) 1 SCC 118: 1978 SCC (Cri)41: AIR 1978 SC 179)). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.” 8. In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Another ((2004)7 SCC 528), while considering the question whether grant of bail on the ground that the accused was in custody for more than 3 ½ years was justified, it was held that the mere fact that the accused has undergone certain period of incarceration by itself would not entitle the accused to being enlarged B.A. NOS.2845, 2846 & 2853 OF 2009 :: 7 :: on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the accused on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused. It was also held that the court granting bail should exercise its discretion in a judicious manner and not as a matter of course. 9. In Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director (AIR 2007 SC 451), the Supreme Court considered Article 21 of the Constitution of India in the matter of granting bail and held thus: “16. We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.” B.A. NOS.2845, 2846 & 2853 OF 2009 :: 8 :: 10. In State of Kerala v. Sugathan (1987 (2) KLT 985), Justice Chettur Sankaran Nair considered the pre-trial detention vis a vis the presumption of innocence. It was held thus: “The ‘presumption’ of innocence is not a relevant consideration, for grant of bail. If investigation is likely to be impeded or evidence likely to be tampered with, or accused likely to flee justice, bail could be declined. … … No hard and fast rules can govern fact situations that courts may come across. The salutary rule is to balance the cause of the criminal defendant, and the cause of public justice. Oversolicitous homage to the criminal defendant’s liberty can sometimes defact the cause of Public Justice. ….. In some quarters a feeling seems to exist that the object of criminal law is to protect the rights of the accused and that criminal justicing system is envisioned as a sentinel of the rights of the accused. It is not so. The law is the sentinel of rights, of the society and of the individual. The rights of the criminal defendant will be as zealously guarded, as the cause of public justice. Pre-trial detention in itself is not an evil, nor opposed to the basic presumptions of innocence. Pronouncements of Supreme Court have recognised the importance of effective investigation, as much as the rights of the accused. The trend of thought has been the same elsewhere also. In Bell v. Wolfish (441 U.S.520), it was considered a justifiable exercise to deny liberty to a criminal defendant to ensure public justice. Ensuring security and order is a permissible non-punitive objective, which can be achieved by pre-trial detention. Where overwhelming considerations in the nature aforesaid require denial of bail, it has to be denied.” B.A. NOS.2845, 2846 & 2853 OF 2009 :: 9 :: 11. I shall also deal with the contention of the petitioner that he is being denied the benefit of Section 167(2) of the Code of Criminal Procedure by the ingenious method adopted by the prosecution. Section 167 of the Code of Criminal Procedure provides the procedure when investigation cannot be completed in 24 hours. The relevant portion of sub –section (2) of Section 167 reads as follows: “Provided that – (a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding, -- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, B.A. NOS.2845, 2846 & 2853 OF 2009 :: 10 :: and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub –section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;” 12. The contention of the petitioner that the expiry of the period provided in proviso (a) to sub-section (2) of Section 167 in one or more cases shall be taken note of, while considering the bail applications in the other cases as well where the arrest is recorded on subsequent dates and where the period provided under Section 167(2) has not expired. It is clear that the period provided in proviso (a) to Section 167(2) Crl. P.C. is to be taken with reference to each case. The grievance of the petitioner is that the prosecution applied for recording the arrest of the petitioner in several cases on successive dates so that they practically could get over proviso (a) to Section 167(2) and thereby prevent the accused being released on bail under the said proviso. The counsel contends that if such a method is adopted, that is an added circumstance to grant bail under Section 439 of the Code of Criminal Procedure. Therefore, it is B.A. NOS.2845, 2846 & 2853 OF 2009 :: 11 :: contended that though the accused may not be able to get a release on bail under proviso (a) to sub-section (2) of Section 167 in those cases where the period provided therein has not expired, taking into account the date of his arrest in the first case, he is entitled to be released on bail under Section 439 in all those cases. I am unable to accept this contention. Section 167 is an independent provision. The question whether a person is entitled to be released on bail under Section 439 is distinct and different from the consideration to be made under proviso (a) to Section 167(2) of the Code of Criminal Procedure. Learned counsel for the petitioner relied on the decision of the Supreme Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J.Kulkarni (AIR 1992 SC 1768) in support of his contention. In that case, the Supreme Court interpreted the expression “otherwise than in the custody of the police beyond the period of fifteen days” occurring in proviso (a) to Section 167(2) and held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the period of ninety days or sixty days and that police custody can be ordered only during the period of first fifteen days. It was also held that if during the investigation the complicity of the accused in some other serious offence during the same occurrence is disclosed, that B.A. NOS.2845, 2846 & 2853 OF 2009 :: 12 :: does not authorize the police to ask for police custody for a further period after the expiry of the first fifteen days. In this context, it was held thus: “If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the Magistrate for detention in police custody. ….. Therefore, there is marked difference between the two situations. The occurrences constituting two different transactions give rise to two different cases and the exercise of power under Section 167(1) and (2) should be in consonance with the object underlying the said provision in respect of each of those occurrences which constitute two different cases. Investigation in one specific case cannot be the same as in the other. Arrest and detention in custody in the context of Section 167(1) and (2) of the Code has to be truly viewed with regard to the investigation of that specific case in which the accused person has been taken into custody. …. We may, however, like to make it explicit that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in B.A. NOS.2845, 2846 & 2853 OF 2009 :: 13 :: custody. A literal construction of Section 167(2) to the effect that a fresh remand for police custody of a person already in judicial custody during investigation of a specific case cannot under any circumstances be issued, would seriously hamper the very investigation of the other case the importance of which needs no special emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same. It is an accepted rule that an interpretation which furthers the ends of justice should be preferred. …. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connection with the investigation of the earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided under Section 167(2) and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above. If the investigation is not completed within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to Section 167(2). The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police.” 13. I do not think that the decision in AIR 1992 SC 1768 would be helpful to the petitioner to support his contentions. If the contention of the petitioner is accepted, a situation would arise that B.A. NOS.2845, 2846 & 2853 OF 2009 :: 14 :: an accused person could not be detained in judicial custody in other cases if the period of sixty days or ninety days as mentioned in the proviso to Section 167(2) is over in one case. There may be several cases against an accused. Some times, the allegations may be similar, but need not always be so. If it were to be held that after the expiry of the period of sixty days or ninety days, as the case may be, in one case, he cannot be detained at all in respect of the other cases, it would be contrary to the provisions of Section 167. Section 167 is aimed at completing the investigation at the earliest. It provides for releasing the accused on bail if the investigation is not completed within sixty days or ninety days, as the case may be. That is with reference to each case and that period cannot be tacked on or considered in respect of several other cases under investigation against the same accused. The accused has no right to say that investigation of all the cases against him should be completed within sixty days or ninety days, as the case may be, and if not, he should be released on bail in all the cases irrespective of the date of arrest in each case. That is not the purport and intent of Section 167(2). Therefore, the petitioner is not also entitled to contend that he is entitled to be released on bail under Section 439, based on the above interpretation placed by him. B.A. NOS.2845, 2846 & 2853 OF 2009 :: 15 :: 14. In the facts and circumstances of the case, applying the above principles of law, I do not think that the petitioner has made out a case for the grant of bail under Section 439 of the Code of Criminal Procedure. Serious offences are alleged against him. Several persons were allegedly cheated by the accused persons, including the petitioner. It is alleged by the prosecution that the accused persons had used fake fixed deposit receipts of banks for canvassing deposits from the public. It is also alleged by the prosecution that the petitioner, acting as the Private Secretary of the first accused, had taken an important role in the offence. Learned Director General of Prosecution submitted that the investigation reveals that the petitioner had received huge amount as commission from the financial institutions, which would show that he is also a beneficiary in the transactions. Though this Court had directed the petitioner to surrender before the Investigating Officer in October, 2008, he failed to do so and he surrendered only on 18.4.2009. The apprehension of the prosecution that if the petitioner is released on bail, he would make himself scarce is fortified by his conduct of not complying with the direction issued by this Court. There is also substance in the contention of the Director General of Prosecution B.A. NOS.2845, 2846 & 2853 OF 2009 :: 16 :: that if the petitioner is released on bail, it is most likely that he would intimidate or influence the prosecution witnesses or cause hindrance to the proper and smooth investigation of the case. For the aforesaid reasons, the Bail Applications are dismissed. (K.T.SANKARAN) Judge ahz/