IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 2845 of 2009()
1. PRAMOD ISSAC, S/O.ISSAC,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DETECTIVE INSPECTOR,
For Petitioner :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :08/06/2009
O R D E R
K.T.SANKARAN, J.
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B.A. Nos.2845, 2846 & 2853 OF 2009
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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
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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
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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
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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
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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
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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 = 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
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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.”
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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.”
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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,
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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
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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
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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
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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
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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.
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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
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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/