Bail is the rule and jail is the exception, based on the presumption of innocence and the right to personal liberty under Article 21 of the Constitution.

The application is filed under Section 439 of the Code of Criminal Procedure , 1973, by the accused 9 to 11 in Crime No.509/2023 of the Cyber Crime Police Station, Thiruvananthapuram, registered against the accused (11 in number) for allegedly committing the offences punishable under Sections 419 and 420 r/w Section 34 of the Indian Penal Code and Section 66D of the Information Technology Act . The petitioner was arrested on 02.04.2024.

2. The essence of the prosecution case is that; the accused 1 to 9, in furtherance of their common intention to deceive the defacto complainant and to secure unlawful gain, fraudulently offered a part-time job to the defacto complainant and made him believe that if he invested in a crypto currency wallet, he would get remuneration. Accordingly, he transferred an amount of Rs.90,36,284/- to various bank account on different dates between 20.11.2023 to 24.11.2023. However, the accused did not give any remuneration to the defacto complainant and refused to return the capital. Thus, the accused have committed the above offences.

3. Heard; Sri.K. Rakesh, the learned counsel appearing for the petitioners and Smt. Seetha. S., the learned Senior Public Prosecutor.

4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of the First Information Report would substantiate that the above offences will not be attracted to the facts of the case.

Notwithstanding the above contentions, the Court of Session has already enlarged the fifth accused on bail as per the order dated 27.04.2024, in Crl.M.C.No.893/2024. The petitioners are entitled to the benefit of a similar order. In any given case, the investigation is practically complete, and recovery has been effected. Hence, the application may be allowed.

5. The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She also contended that the petitioners are history sheeters. The ninth accused is involved in three other cases, and the accused 10 and 11 are also involved in one case each outside the state of Kerala. If the petitioners are released on bail, there is a likelihood of them committing similar offences. Hence, the application may be dismissed.

6. The prosecution allegation against the petitioners is that, they, in furtherance of their common intention to the other accused, have deceived the defacto complainant and made him invest an amount of Rs.90,36,284/- by promising him remuneration. However, they did not pay any remuneration or return his capital.

The fact remains that the petitioners have been in judicial custody for the last 50 days, the investigation in the case is complete, and recovery has been effected.

Moreover, the Court of Session has enlarged the fifth accused on bail as already mentioned above.

7. 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.

8. 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.

9. In Dataram Singh v. State of U.P. , [ (2018) 3 SCC 22 ] the Honourable Supreme Court observed that grant of bail is the rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner.

10. In Hussainara Khatoon (I) v. Home Secy., State of