IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 Bail Appl..No. 6047 of 2008() ----------------------------- CRIME NUMBER NOT KNOWN PETITIONER:- -------------------------------- DR.REMANI K, AGED 49 YEARS, W/O.DR.KRISHNAN R, ASVINI HOSPITAL, CURSON ROAD, KOLLAM -13. BY ADV. SRI.B.N.SHIVSANKAR RESPONDENT(S): --------------- 1. THE SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM. 2. THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH, THIRUVANANTHAPURAM. 3. THE CIRCLE INSPECTOR OF POLICE, CRIME BRANCH, MEDICAL COLLEGE, THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SRI. C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07/10/2008, ALONG WITH BA NO. 6116 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. Nos. 6047 & 6116 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of October,2008 O R D E R These petitions are for bail. 2. The alleged offences are under Sections 420, 406 and 120B read with 34 of Indian Penal Code. According to prosecution, a complaint was received from two persons making allegations against the first and second accused that they deceived the de facto complainants and they were fraudulently induced to make deposits in a proprietary concern called “NEST” run by the first accused, on the promise that huge interest will be paid to them. But, amounts nor interest were paid, despite request. The persons were thereby deceived fraudulently, by dishonestly inducing to deliver the money as deposit in “NEST” and thereby the accused cheated the depositors and also misappropriated huge amount to the gain of the first and second accused, etc. 3. On the basis of such complaint made by two depositors, a crime was registered and in the course of the investigation, it is revealed that several depositors were similarly cheated and the money belonged to them was also misappropriated. Not only by the first and second accused, but various other associates and the officials, who were working under the first accused had also been cheating various persons in the like manner. The petitioner BA 6047/08 & con. case -2- in B.A.No.6116 of 2008 is the fourth accused, who is the Personal Secretary of the first accused and the petitioner in B.A.No.6047 of 2008 is the 10th accused, who was also working as a staff of the first accused. These two persons and also various other persons have hatched a criminal conspiracy and cheated various depositors, by making false representations, and induced them to make deposits, with intention to make wrongful gain by the accused. 4. Learned counsel for the 10th accused and the 4th accused vehemently contended that they are innocent of the allegations made. Learned counsel for the 10th accused submitted that the 10th accused is a doctor by profession who is running a private Nursing Home and she has absolutely no connection with the business run by first accused as staff working under him. She was only a depositor, who was persuaded to make huge deposits by herself and her sister. Initially on 13.8.2008 she deposited Rs.2 lakhs and within one month she got the return of Rs.1,00,000/- and this encouraged the 10th accused to re-invest the money, which she gained as profit. She also persuaded her sister, who is abroad to deposit Rs.95 lakhs and the said money was also deposited. Altogether the investment grew up to more than two crores of rupees (Rs.2,20,95,000/-) in the name of the 10th accused alone. But she had some hunch that the money may be BA 6047/08 & con. case -3- lost and hence she insisted to return a portion of it and under much pressure, she was allowed to withdraw Rs.53 lakhs. It is not correct to say that the petitioner induced any depositors and committed any offence of cheating, etc. 5. It is understood that some allegations are made that one Dr.Rita Cross, , Dr.Thomas, Nijamudin etc. are cheated by the 10th accused. But, those allegations are absolutely false. It is also submitted that the 10th accused is prepared to deposit Rs.22 lakhs before the court, if this Court so directs, so that whatever money is due to those persons, can be paid to them. The petitioner has no intention to cheat any person, but she is prepared to redress their grievance, if any. In such circumstances, if she is arrested and detained, it will result in serious consequences and irreparable injury and loss to her. Being a doctor running a Nursing Home, it will adversely affect her reputation in the society and also affect her profession adversely. The petitioner is a woman and anticipatory bail may be granted, it is submitted. 6. Learned counsel for the 10th accused also submitted that there are various other persons, who are involved, including the son of a Minister, but the investigating agency is interested only in chasing the 10th accused and persons like her, without any basis. BA 6047/08 & con. case -4- Though one of the cars used by “NEST” is purchased in the name of the Minister's son, no action was taken against him and the investigation itself is shady and therefore, at the hands of such investigators, petitioner's reputation and interest may not suffer, it is submitted. 7. Learned counsel for fourth accused argued that the fourth accused was only working as a Personal Secretary to the first accused, and he was acting, only in accordance with the directions given by the first accused. He has not committed anything illegal. He has not committed any offence of cheating knowingly or intentionally. He had worked under the first accused, but the allegation that he fraudulently and dishonestly induced depositors to make huge deposits with an intention to cheat them etc. are absolutely false. The fourth accused is prepared to abide by any condition, as imposed by this Court and anticipatory bail may be granted, it is submitted. It is also submitted that no person, to his knowledge, has made any complaint against the fourth accused and hence, fourth accused is unnecessarily harassed, alleging that she is guilty of cheating etc. 8. This petition is strongly opposed. Learned Public Prosecutor submitted that after the registration of a complaint, on receipt of a complaint made by two depositors, investigation was conducted into BA 6047/08 & con. case -5- the crime and in the course of it, several complaints were received from several depositors, making allegations, which clearly constitute offence of cheating. There are umpteen witnesses, who have given statements to the investigators alleging that the petitioners and other accused have personally induced the depositors with dishonest and fraudulent intention, and they were deceived by false representation to deliver deposits that huge interest will be paid etc. Hard-earned money which they raised for the construction of the house, for meeting hospital expenses, educational expenses etc. were made to be deposited in the firm run by the first accused. But for the fraudulent representations, inducement and deception, they would not have deposited such huge deposits, which they have lost in the transaction. The offence committed by the persons cannot be washed away, by a mere deposit of any of such amounts now. A thorough investigation is required into the involvement of the petitioners and hence granting of anticipatory bail will adversely affect the investigation, it is submitted. 9. As many as 666 complaints were received, and those would reveal the involvement of the petitioners in the offence of cheating. It is submitted that several persons have given complaints against petitioners and it is not correct to say that petitioners are being BA 6047/08 & con. case -6- harassed, without any basis. Petitioners are required for the purpose of investigation and interrogation, to reveal the nature of the offence, which is committed by them and others. Only if they are questioned, several facts, which are in the exclusive knowledge of these persons, regarding the details of the modus operandi of the crime can be ascertained by investigation. Petitioners are required for the purpose of interrogation, and if anticipatory bail is granted to them, it may not be possible to investigate the case effectively, it is submitted. 10. It is also brought to the notice of this Court that the 10th accused has a deposit of more than rupees 12 crores and it is not understood from which source she received such a huge amount. It is also admitted, during the course of argument itself that she deposited more than Rs.2 crores, and this deposit is effected within a short period, from 13-8-2007 onwards. How this amount is raised is a matter, which requires a detailed investigation, it is submitted. It is also submitted that several depositors have lost their hard earned money and they were cheated by petitioners and others and hence on the facts in this case, it is not a fit case to grant anticipatory bail. 11. It is also brought to my notice that a document was executed as “contract agreement” dated 24-12-2007 by which it is confirmed that the 10th accused “responsible too operate the system BA 6047/08 & con. case -7- of code no: 12 from 24-12-2007 to a period of three months with a set target of 30lakhs per month and more”. According to him, this itself will convince the real role of the 10th accused in the crime and the close association of the 10th accused with the firm and first accused. It may not be correct to say that she has absolutely no role in the business run by first accused, it is submitted. 12. Regarding the allegations made with respect to the involvement of minister's son, Learned Public Prosecutor made it clear that the allegations made are not quite correct. The minister's son who is allegedly involved in this offence had purchased a Swift car and he had sold it to another person and from that person, the 1st accused had purchased the same. That is the only connection which the minster's son has in this case. Still, the car was taken into custody and it is revealed that minister's son is not the owner of the said car, which was purchased by the 1st accused. If at all there is any involvement of minister's son, that will be definitely enquired into and investigated into, it is submitted. 13. On hearing both sides, and on consideration of the rival contentions, it would appear to me that petitioners are required for the purpose of investigation into an offence. The allegations made against petitioners are serious in nature and the relevant facts can be BA 6047/08 & con. case -8- ascertained by investigation only if they are interrogated in custody by the police. The asserted innocence of the petitioners can also be revealed only if they are interrogated. Therefore, to protect of the interest of both sides, I find that a direction has been issued to petitioners to make themselves available for interrogation by the police. 14. It is well settled that the gravity of offence and seriousness of the allegations made are matters which are quite relevant for consideration, while considering anticipatory bail application. In a matter like this, the accused will have many facts in their exclusive knowledge, which are to be ascertained by custodial interrogation. It is true that as per section 438 Cr.P.C. a condition can be imposed by directing petitioners to subject themselves for interrogation, while granting anticipatory bail. But, such a direction will not be an equal substitute for custodial interrogation, which would be required in a case of this nature, for the purpose of an effective investigation. I already laid in Hyderali V. State of Kerala (2008(2) K.H.C. 743) that there is a striking difference between “custodial interrogation” and a mere interrogation after granting of anticipatory bail, by imposing a condition under section 438 Cr.P.C. for interrogation of the accused. BA 6047/08 & con. case -9- 15. If such a condition is imposed, there can only be an interrogation by the police and not “custodial interrogation”. Once bail is granted, there is absolutely release of the accused from any custody whether judicial or police and there cannot be a “custodial interrogation”. “Custodial interrogation” is not prohibited by law, but on the other hand, it is recognized and well-accepted by law. If the court intervenes and prevent the accused from being interrogated in police custody, it may amount to interference in the lawful investigation and police will be prevented from exercising their duties and collect evidence and materials which are required for the purpose proving the offence. The principles are discussed by me in detail in Hyderali's case. If the court intervenes and prevents collection of materials, without allowing interrogation in police custody, the grievance of the victim cannot be redressed and public justice will be a casualty. The interest of the State is also to be protected by courts. 16. Interrogation in police custody, which is legal and permitted, cannot be equated with torture. There is nothing on record to indicate that the petitioners will be tortured by police. In interrogation, there may be an aggressive form of questioning, as the very word means. But such aggressive questioning cannot be made a ground to avoid interrogation by police in fit cases (vide Hyderali's BA 6047/08 & con. case -10- case). Thus, taking all the above facts into consideration, I find that in an offence of this nature, it may not be proper for this Court to grant anticipatory bail. The crime is registered as early as on 27-8-2008 and petitioners could not be arrested so far. The investigation can be proceeded smoothly, only if all the accused are made available for the purpose of investigation. Petitioners having surrendered to the jurisdiction of this court by filing this petition, it is well within the jurisdiction of this Court to direct the accused to surrender and co- operate with investigation. The courts cannot be a mere spectator in a situation like this and it can certainly give directions, gaining support from the dictum laid down in Sakiri Vasu V. State of Utter Pradesh and others (2008(2) SCC 409. Hence, petitioners are directed to report before the Investigating Officer within 20 days from today and co- operate with the investigation and make themselves available for interrogation. With these directions, the petitions are dismissed. K.HEMA, JUDGE. mn.