Bail should not be withheld as punishment; the principle that 'bail is the rule and jail is an exception' must be upheld.

COMMON ORDER

Dated this the 25th day of November, 2024 The applications are filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita ( ‘the BNSS ’ for short) 2023, by the accused 5 and 6 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 .

2. B.A No.9269 of 2024 is filed by the 5th accused and B.A No.9274 of 2024 is filed by the 6th accused. As the applications arise out of the same crime, they are consolidated, jointly heard and are being disposed of by this common order. The petitioners were remanded to judicial custody on 21.10.2024.

3. 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.

4. Heard; Sri.P.Sanjay, the learned counsel appearing for the petitioners and Sri.C.S.Hrithwik, and Smt.Seetha.S, the learned Senior Public Prosecutors.

5. The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations levelled against them. There is no material to substantiate the petitioners culpability in the crime.

The petitioners have been implicated in the case solely for the reason that a total amount of Rs.1,08,000/- was transferred to the accounts of the petitioners. The petitioners are unaware of the said transaction. In any given case, the petitioners have been in judicial custody for the last one month, the investigation in the case, so far as the petitioners is concerned, is practically complete, and the recovery has been effected. Furthermore, the petitioners do not have any criminal antecedents. Hence, the applications may be allowed.

6. The learned Public Prosecutors opposed the applications. They submitted that the investigation is only at a preliminary stage. There are materials to establish that the petitioners have received the proceeds of the crime. If the petitioners are enlarged on bail, there is every likelihood of them intimidating the witnesses and tampering with the evidence. Hence, the applications may be dismissed.

7. The prosecution allegation against the petitioners is that, Rs.98,000/- and 10,000/- were transferred to the accounts of the petitioners, respectively. Subsequently, the amounts were withdrawn from their bank accounts. The petitioners’ contention is that they are unaware of the above said transactions, which were done by some one from abroad and the amounts were subsequently withdrawn. The fact remains that, the petitioners have been in judicial custody for the last one month, the investigation in the case, so far as the petitioners is concerned, is practically complete, recovery has been effected and the petitioners do no have any criminal antecedents.

8. Recently, 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 i