High Court Kerala High Court

Santosh Madavan vs Superintendent Of Police on 3 July, 2008

Kerala High Court
Santosh Madavan vs Superintendent Of Police on 3 July, 2008
       

  

  

 
 
  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.

               -----------------------------------------

                      B.A.No.4262 of 2008

               -----------------------------------------

                 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

BA.4262/08 4

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-

BA.4262/08 8

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.

BA.4262/08 10

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

BA.4262/08 11

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.