Bail is the rule and jail is an exception; continued detention is unnecessary when the investigation is complete and no risk of tampering exists.

ORDER

Dated this the 27th day of November, 2024 The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita ( ‘the BNSS ’ for short) 2023, by the 4th accused in Crime No.355/2024 of the Kadavanthra Police Station, Ernakulam, which is registered against six accused persons for allegedly committing the offences punishable under Sections 318 (4) and 316(2) read with Section 3 (5) of the BNS and Section 66 (b) of the Information Technology Act . The petitioner was remanded to judicial custody on2 1.10.2024.

2. The prosecution case, in brief, is that, the accused 1 and 2 had induced the first informant to join a whats app group named “D5 Aviva Investment Academy” and the 2nd accused shared the first informant’s mobile number with the 1st accused, and the 1st accused instructed the first informant to transfer Rs.52,22,000/- to his bank account on the assurance of paying profit. Consequently, the first informant transferred the above amount between 20.06.2024 and 12.07.2024. However, the accused failed to pay any profit and refused to return the capital. Instead, the accused 1 and 2 transferred the above amount to the accounts of the accused 3 to 6.

Thus, the accused have committed the above offences.

3. Heard; Sri.K.Mohammed Rafeeq, the learned counsel appearing for the petitioner and Smt.Pushpalatha M K, the learned Senior Public Prosecutor.

4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate the petitioner’s culpability in the crime. The petitioner has been falsely implicated in the crime for the sole reason that he received Rs.10,000/- in his bank account. The petitioner is unaware of the transaction. By orders in B.A.Nos.9269/2024 and 9274/2024, this Court had enlarged the accused 5 and 6 on bail. The petitioner is entitled to parity with the said accused. The petitioner has been in judicial custody for the last one month, the investigation in the case is complete, and the recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

5. The learned Public Prosecutor opposed the applications. She submitted that the investigation is only at a preliminary stage. She also stated that if the petitioner is enlarged on bail, there is every likelihood of him tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed.

6. The prosecution allegation against the petitioner is that, he received Rs.10,000/- from two bank accounts of the other accused. Subsequently, he withdrew the said amount.

7. The petitioner’s principle contention is that he is unaware of the above transactions, which is done by somebody from abroad and the amounts were subsequently withdrawn by someone. The fact remains that, the petitioner has been in judicial custody for the last one month, the investigation in the case is complete, and recovery has been effected. Furthermore, I find that the accused 5 and 6 have been enlarged on bail by this Court.8. Re

cently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From its experience, it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is the rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, the Honourable Supreme Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts recognize the principle that “bail is the rule and jail is an exception”.

9. On an overall consideration of the facts, the rival submissions mad