Bail is the rule and jail is an exception, and the presumption of innocence until proven guilty should be the guiding principle in granting bail, even if the accused has criminal antecedents.

The applications are filed under Section 439 of the Code of Criminal Procedure, 1973 , by the accused 1 and 2 in Crime No.404/2024 of the Manjeri Crime Police Station, Malappuram, registered against the accused, for allegedly committing the offences punishable under Section 420 of the Indian Penal Code and Sec.66D of the Information Technology Act . The petitioners were originally arrested in crime No.169/2024 of the Nenmara Police Station, Palakkad. The petitioners’ arrest was recorded on 18.4.2024 in the present crime. BA No.3743/2024 is filed by the first accused and BA No.3945/2024 is filed by the second accused. As the applications arise out of the same crime, they are consolidated, jointly tried and are being disposed of by this common order.

2. The gist of the prosecution case is that; the accused, in furtherance of their common intention, to cheat the de facto complainant made him believe that there was a loan approved in his favour and requested him to make an online application. When the de facto complainant submitted the application the accused made certain corrections and collected an amount of Rs.68,229/- on 16.4.2024 and 21.2.2024. The accused did not give the amount to the de facto complainant. Thus, the accused have committed the above offences.

3. Heard; Sri.Santhosh Kumar T.P, the learned counsel appearing for the petitioners and Smt.Neema T.V and Smt.Seetha.S, the learned Senior Public Prosecutors.

4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. There are no incriminating materials to show the petitioners’ involvement in the crime. In any given case, the petitioners have been in judicial custody for the last 56 days, the investigation in the case is complete and recovery has been effected.

Hence, the applications may be allowed.

5. The learned Public Prosecutors opposed the applications. The Investigating Officer has filed a bail objection report, inter alia, contending that there are incriminating materials to show the petitioners’ involvement in the crime. The investigation is in progress. Moreover, the petitioners have criminal antecedents since they are the accused in Crime No.169/2024 of the Nenmara Police Station and Crime No.528/2024 of the Ernakulam Central Police Station. If the petitioners are released on bail, there is a likelihood of them committing a similar offence. Hence, the application may be dismissed.

6. The learned counsel appearing for the petitioners refuted the submissions. He submitted that the petitioners have been enlarged on bail in the above-mentioned crimes as per the orders of this Court in BA Nos.2910/2024, 3449/2024 and 3668/2024. The petitioners have been in judicial custody for the last 56 days.

7. The prosecution allegation against the accused is that they had cheated the de facto complainant by telling him that there was a loan approved in his favour and requested him to submit an online application. However, they corrected the online application and siphoned off Rs.68,229/- from the de facto complainant. The fact remains that the petitioners have been in judicial custody for the last 56 days, the investigation in the case is complete and recovery has been effected.

8. It is well settled in Hussainara Khatoon (I) v. Home Secy., State of Bihar [ (1980) 1 SCC 81 ], that merely because a person has an antecedent, the same shall not be treated as a ground to deny bail to that person.

9. In Sanjay Chandra v. CBI , [ 2012 1 SCC 40 ], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence, until a person is found guilty.

Any imprisonment prior to conviction is to be considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct.

10. The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Cons