IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 4262 of 2008()
1. SANTOSH MADAVAN,
... Petitioner
Vs
1. SUPERINTENDENT OF POLICE,
... Respondent
2. CIRCLE INSPECTOR OF POLICE,
3. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.S.GOPAKUMARAN NAIR (SR.)
For Respondent : No Appearance
The Hon'ble MRS. Justice K.HEMA
Dated :03/07/2008
O R D E R
K.HEMA, J.
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B.A.No.4262 of 2008
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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
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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.
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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
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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.
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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
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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
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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-
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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
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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.
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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
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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
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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.