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  Judgement - 10KLC-3545
 
   
   
 

Before K.T. Sankaran, J
Monday, the 1st day of March 2010/10th Phalguna 1931

Party Array / Case No.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl..No. 1163 of 2010()


1. DR.K.A.KOSHY,
                      ...  Petitioner
2. DR.SERENA, W/O. DR.K.A.KOSHY,

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. S.I. OF POLICE,

3. COMMISSIONER OF POLICE,

                For Petitioner  :SRI.P.VIJAYA BHANU

                For Respondent  :SRI.K.RAMAKUMAR (SR.)

The Hon'ble MR. Justice K.T.SANKARAN

 Dated :01/03/2010

Judgement



     O R D E R
                              K.T.SANKARAN, J.
                 ------------------------------------------------------
                           B.A. NO. 1163 OF 2010
                 ------------------------------------------------------
                  Dated this the 1st day of March, 2010


                                    O R D E R


          This is an application for anticipatory bail under Section 438 of

    the Code of Criminal Procedure, filed by Dr.K.A.Koshy and

    Dr.Serena, who are two accused persons among the accused in

    Crime No.30 of 2010 of Rajpura City Police Station, Patiala District,

    Punjab.



          2. The petitioners apprehend arrest in Crime No.30 of 2010,

    where the offences alleged, going by Annexure A First Information

    Report, are under Section 65 and 66(1) and (2) of the Information

    Technology Act, 2000. After hearing all the counsel and the learned

    Additional Advocate General of the State of Punjab, it is fairly clear

    that the offences alleged against the accused include the offences

    under Sections 419 and 420 of the Indian Penal Code as well.



          3. In the Bail Application, the offences under Sections 419

    and 420 of the Indian Penal Code were not mentioned. When the

    Bail Application came up for admission, the undertaking made by the

    B.A. NO. 1163 OF 2010

                                        :: 2 ::

    learned Public Prosecutor appearing for respondents 1 and 3 that

    the petitioners will not be arrested for a period of two weeks was

    recorded and urgent notice was ordered to respondent No.2, the S.I.

    Of Police, Rajpura City Police Station, Patiala, Punjab. It is brought

    to my notice that the offence under Sections 65 and 66 of the

    Information Technology Act is bailable in view of Section 77B of the

    Information Technology Act. Section 77 B was introduced by the

    Information Technology (Amendment) Act 2008 (Act 10 of 2009).

    Section 77B provides that notwithstanding anything contained in the

    Code of Criminal Procedure, 1973, the offence punishable with

    imprisonment of three years and above shall be cognizable and the

    offence punishable with imprisonment of three years shall be

    bailable.  The learned counsel for the petitioners submitted that he

    inadvertently omitted to notice Section 77B of the Information

    Technology Act. However, the learned counsel for the petitioners

    submitted that as non bailable offences under Sections 419 and 420

    of the Indian Penal Code are also involved, though the petitioners

    were not aware of the same and though it was not mentioned in the

    Bail Application, the interim order could be legally sustained and the

    Bail Application could be maintained.

    B.A. NO. 1163 OF 2010

                                       :: 3 ::

           4. From Annexure A FIR and also from the affidavit sworn to

    by the authorised representative of the de facto complainant

    Company, it is seen that one of the offences alleged against the

    accused is under Section 66(1) and (2) of the Information

    Technology Act. Section 66 of the Information Technology Act was

    substituted by Act 10 of 2009. After the amendment, Section 66 does

    not contain sub-sections (1) and (2).



           5. The gist of the prosecution case is the following: The de

    facto complainant, M/s.Jay Polychem (India) Limited, a company

    registered under the Companies Act, 1956, having its Corporate

    office at D-143, Defence Colony, New Delhi, is primarily engaged in

    the business of trading and distribution of petrochemicals in India

    and overseas. The Company has a foreign clientele. The Company

    has a web site, namely, "www.jaypolychem.com". On 30.11.2009,

    one of the Directors of the Company noticed a web site under the

    name and style "www.jaypolychem.org" containing defamatory and

    malicious contents against the Company and its Directors. That web

    site was neither created nor set up by the Company. It is alleged

    that the same was set up by Samdeep Mohan Varghese @ Sam, a

    disgruntled and dismissed employee of the Company, in conspiracy

    B.A. NO. 1163 OF 2010

                                      :: 4 ::

    with Amardeep Singh @ Amy, who was also an employee of the

    Company and certain other persons such as Preeti and Charanjeet

    Singh @ Channi and the sister and brother-in-law of Sam, who are

    based in Cochin. They did so with a view to cause wrongful loss to

    the Company and wrongful gain to them. They did so as a result of

    the collusion and conspiracy among them. It is alleged that the

    accused persons sent various emails from fake email accounts to

    many of the customers of the Company.          The said defamatory

    emails were made with a view to cause loss of reputation and loss to

    the Company and its Directors.      There was a larger conspiracy

    among the accused persons, which requires to be unearthed during

    investigation. The defamation campaign run by the accused persons

    had caused immense damage to the name and reputation of the

    Company. The Company had suffered loss of several crores of

    rupees. It is alleged that Samdeep Mohan Varghese and Amardeep

    Singh, in collusion with the other accused, had impersonated

    different individuals and had used forged electronic records, created

    false email accounts, sent false and offensive information causing

    loss to the Company and had deceived the addressees. It is alleged

    that Samdeep Mohan Varghese had been passing on and

    exchanging confidential information of the Company to the other

    B.A. NO. 1163 OF 2010

                                        :: 5 ::

    accused and third parties and those persons include his sister and

    brother-in-law (the petitioners herein). The sister and brother-in-law

    of Samdeep Mohan Varghese had financed a trip to Amardeep

    Singh and his wife to Cochin and Munnar. The accused persons

    had parted with information relating to the Company with a view to

    cause wrongful loss to the Company and wrongful gain to them. The

    accused, in collusion with each other, dishonestly cheated the

    Company, committed acts of forgery, blackmailed the Company and

    its Directors and tried to extort money. All the accused persons had

    a common intention to commit the offence. The accused persons

    made unauthorised access to the Company's electronic data which

    caused great prejudice to the Company.



           6. The First Information Report was registered on 5.2.2010 as

    FIR.No.30 of 2010.



           7. It is stated that the first petitioner, Dr.K.A.Koshy, is an

    Anesthetist, working in Lakshmi Hospital, Divans Road, Ernakulam.

    The second petitioner, wife of Dr.K.A.Koshy, is a Pediatrician

    working in Krishna Hospital, Divans Road, Ernakulam. Annexures B

    and C certificates issued by Lakshmi Hospital and Krishna Hospital

    B.A. NO. 1163 OF 2010

                                        :: 6 ::

    show that Dr.K.A.Koshy and Dr.Serena were working from 21.6.2009

    and 1.7.2009 respectively till date in the respective hospitals.  The

    learned counsel for the petitioners submitted that the petitioners are

    absolutely innocent of the allegations levelled against them. They

    are not in any way connected with the offence. It is stated in ground

    3 of the Bail Application thus:



                  "3. The brother of the 2nd applicant, Mr.Samdeep

           Mohan Varghese was an erstwhile employee of Jay

           Polychem India Ltd. He resigned the said office due to

           differences with the company management. The reason

           for differences was that the company, one which dealing

           with petrochemicals was engaging in lot shady and

           illegal activities. The company management feared

           these inside information, which Mr.Samdeep is fully

           aware of, if divulged would cause danger attracting legal

           prosecutions     endangering   the   company    and    its

           directors. The said complaint making the sister and her

           husband as accused is only to harass Mr.Samdeep."



          8. Crl.M.A.No.934 of 2010 was filed by the petitioners to raise

    additional grounds, wherein it is stated that the petitioners

    apprehend imminent arrest and detention by the personnel of the

    Punjab Police in Kerala on the allegation of having committed non-

    B.A. NO. 1163 OF 2010

                                      :: 7 ::

    bailable offences and the petitioners apprehend serious threat to

    their lives at the hands of the Police Personnel from Punjab. The

    petitioners have also filed Crl.M.A.No.1004 of 2010 to accept

    Annexures B and C certificates.



           9.  Heard Sri.P.Vijaya Bhanu, the learned counsel for the

    petitioners, Sri.K.Ramkumar, Senior Advocate, and Advocate

    Sri.Vineeth Malhotra, on behalf of the de facto complainant, the

    learned Additional Advocate General of the State of Punjab

    appearing for the second respondent (S.I. of Police, Rajpura City

    Police Station, Patiala District, Punjab) and the learned Public

    Prosecutor appearing for respondents 1 and 3 ( State of Kerala and

    Commissioner of Police, Ernakulam City).



           10. Sri.K.Ramkumar submitted that there is no averment in

    the Bail Application that the petitioners apprehend arrest on an

    accusation of having committed non-bailable offences and,

    therefore, the application under Section 438 of the Code of Criminal

    Procedure is not maintainable. Sri.Ramkumar also submitted that

    there is also no mention in the Bail Application that the petitioners

    apprehend arrest in the State of Kerala.     It is submitted by the

    B.A. NO. 1163 OF 2010

                                        :: 8 ::

    counsel that the petitioners cannot improve the situation by filing a

    petition, which now the petitioners have done. It is also submitted by

    Sri.K.Ramkumar and also by Sri.Vineeth Malhotra that two of the

    accused who were arrested had confessed that they had handed

    over huge amounts to the petitioners. The case involves a multi

    crore scam. It is stated that the laptops belonging to the petitioners

    would be good piece of evidence and if the petitioners are granted

    anticipatory bail, they might tamper with it. Sri.Ramkumar relied on

    the Supreme Court decision in Joginder @ Jindi v. State of

    Haryana (2008 (4) KHC 294(SC)), which states that a petition under

    Section 438 of the Code of Criminal Procedure in relation to a

    bailable offence would be misconceived.       He also relied on the

    decision in Rajeevan v. State of Kerala (2008 (4) KHC 70) in

    support of the contention that when a non-bailable arrest warrant is

    issued against an accused person, his remedy is not to file an

    application for anticipatory bail.



           11.   In the affidavit filed by Sri.Pawan Kumar, the Sub

    Inspector of Police, Rajpura City Police Station, it is stated that

    during the investigation, two accused persons, namely, Amardeep

    Singh and Rahul were arrested by the police and they are in judicial

    B.A. NO. 1163 OF 2010

                                          :: 9 ::

    custody. It is stated that the investigation revealed "a deep rooted

    conspiracy of committing grave white collar crime of embezzlement

    of crores of rupees". To unearth the fraud, custodial interrogation of

    the petitioners is necessary and inevitable. In the affidavit, it is also

    stated that the Judicial Magistrate, Rajpura, Patiala District, Punjab,

    having jurisdiction of the matter had issued non-bailable warrants to

    arrest the petitioners. Annexures R2(a) and R2(b) are said to be the

    copies of the arrest warrants. It is also stated that Samdeep Mohan

    Varghese has fled to Singapore and it is reasonably apprehended

    that the petitioners are also likely to abscond.



          12. The learned Additional Advocate General, State of Punjab

    submitted that the petitioners are also involved in the multi crore

    scam and they have also played their own part in the crime. It is

    pointed out that the petitioners, who filed the Bail Application on

    19.2.2010, could secure a copy of the First Information Report,

    which was registered on 5.2.2010. Still the petitioners have not

    surrendered before the appropriate court and sought for reliefs. That

    shows that they are not prepared to co-operate with the

    investigation. Custodial interrogation of the petitioners is essential in

    the case.    This is not a fit case for exercising the discretionary

    B.A. NO. 1163 OF 2010

                                         :: 10 ::

    jurisdiction under Section 438 of the Code of Criminal Procedure by

    this Court.



           13. Sri. Vijayabhanu submitted that Annexures R2 (a) and R2

    (b) warrants are not in Form No.2 appended to the Code of Criminal

    Procedure. The warrant is not addressed to any particular police

    officer within the jurisdiction of the learned Magistrate. In Annexure

    R2(a) warrant, the name of the accused is shown as "Doctor son in

    law of Mariama R/o Cochin". In Annexure R 2(b) warrant, the name

    of the accused is shown as "Mrs.Sareen Daughter of Mariama R/o

    Cochin". In the warrants, it is noted thus: "Accused may not be

    arrested in case any anticipatory bail or arrest stay order passed by

    any competent authority is produced by the accused." The counsel

    submitted that on 21-2-2010, the first petitioner was dragged out

    from Lakhsmi Hospital by the police officer from Punjab and in spite

    of showing to him the interim order passed by this Court on

    19.2.2010, the first petitioner was not released. He was forcibly

    taken to the office of the City Police Commissioner. Later, he was

    allowed to go.



           14.   Sri.Vijayabhanu, learned counsel for the petitioners

    B.A. NO. 1163 OF 2010

                                        :: 11 ::

    submitted that the petitioners have no objection in searching their

    residence and office premises by the Punjab police at any time, even

    before disposing the Bail Application. He submitted that the Bail

    Application need be disposed of only after such search, if the Court

    so orders.      The learned counsel appearing for the de facto

    complainant and the learned Additional Advocate General did not

    make any positive response to this submission.



          15. It is apposite to point out that the Bail Application and the

    application filed by the petitioners to raise additional grounds do not

    contain the relevant facts. The Bail Application is cryptic and bereft

    of necessary facts and details. The right of the accused not to

    disclose his defense does not extend to such an extent that he need

    not state the relevant facts in the Bail Application. If the petitioner in

    a Bail Application relies on any particular fact not borne out by the

    Case Diary, necessarily, it has to be pleaded by him. It cannot be

    said that the accused is entitled to put forward anything on facts in

    the arguments without any supporting data on record.                 Any

    contention can be raised on the basis of the factual matrix available.

    However, on undisclosed factual background, I do not think that the

    accused is entitled to put forward imaginary arguments, without any

    B.A. NO. 1163 OF 2010

                                        :: 12 ::

    risk of contradiction or without committing anything. Facts especially

    within the knowledge of the party should be pleaded by him. It

    should not be misunderstood that the above view is to the effect that

    Bail Application should contain the pleadings as in an Appeal or

    Revision in a civil case. But the necessary facts, not borne out by

    the FIR, remand report and Case Diary, on the basis of which the

    petitioner in a Bail Application desires the court to grant relief, should

    be stated by him in the Bail Application. However, in the facts and

    circumstances of the case, I do not propose to decline relief to the

    petitioners on this ground.



           16.    Now, I shall consider the contention that the Bail

    Application is not maintainable, since the arrest is sought to be made

    on the basis of a warrant issued by a competent Court. In Bharat

    Chaudhary V. State of Bihar: (2003 (3) KLT 956= (2003) 8 SCC

    77), the Supreme Court held that Section 438 of the Code of

    Criminal Procedure can be invoked even after charge sheet is filed

    and cognizance is taken. It was held:



           "From the perusal of this part of Section 438 of CrPC,

           we find no restriction in regard to exercise of this power

    B.A. NO. 1163 OF 2010

                                        :: 13 ::

          in a suitable case either by the Court of Session, High

          Court or this Court even when cognizance is taken or a

          charge sheet is filed. The object of Section 438 is to

          prevent undue harassment of the accused persons by

          pre-trial arrest and detention. The fact, that a court has

          either taken cognizance of the complaint or the

          investigating agency has filed a charge sheet, would not

          by itself, in our opinion, prevent the courts concerned

          from granting anticipatory bail in appropriate cases. "



          17. In Vineeth Somarajan V. State of Kerala: 2009 (3) KLT

    576 = 2009 (3) KHC 471, after filing the charge sheet, non bailable

    warrant was issued by the court for the arrest of the accused. The

    accused moved the High Court under Section 438 Cr.P.C. Referring

    to Bharat Chaudhary's case and Salauddin Abdulsamd Shaikh V.

    State of Maharashtra (1996) 1 SCC 667, it was held:



                 "6. It is true that going by the decision in Bharat

          Chaudhary's case, there is no bar in entertaining an

          application under S.438 of the Code of Criminal

          Procedure after the charge sheet is filed. However, it is

          not a general rule that the power under S.438 of the

          Code of Criminal Procedure could be exercised in each

          and every case, where charge sheet is filed.

          Exceptional circumstances may arise in which exercise

    B.A. NO. 1163 OF 2010

                                         :: 14 ::

          of the power by the Sessions Court or the High Court

          under S.438 may be warranted and the fact that the

          charge sheet was filed in the case would not be a bar to

          entertain such an application under S.438 of the Code

          of Criminal Procedure. Ordinarily, when a charge sheet

          is filed, it is for the Court which has to try the case that

          has to deal with the application for regular bail.

          Whether bail should be granted in the facts and

          circumstances of the case, has to be considered by the

          Court which is expected to try the case."



          18. In Vineeth Somarajan's case, warrant was issued after

    the charge sheet was filed. In Rajeevan V. State of Kerala : (2008

    (4) KHC 70), proceedings under Sections 82 and 83 Cr.P.C. were

    taken against the accused and non bailable warrant was issued. In

    the present case, it would appear that warrant was issued by the

    Court on the request of the investigating officer pending

    investigation. In the light of the decisions referred to above, I am not

    inclined to accept the contention put forward by Sri.Ramkumar that

    the Bail Application is not maintainable since the petitioners are

    sought to be arrested in execution of a non bailable warrant.



          19. In C.I.Mathew V. Government of India: (1984 KLT 942),

    B.A. NO. 1163 OF 2010

                                         :: 15 ::

    Justice Bhaskaran Nambiar considered the question whether the

    High Court has power to grant anticipatory bail in respect of offences

    committed outside the jurisdictional limits of that High Court and held

    in the affirmative. It was held thus:



                  "11. If arrest is sought to be prevented, the place

           where the arrest is effected gives reasonable nexus for

           the exercise of jurisdiction under S.438.        The court,

           whether it is the High Court or the Sessions Court,

           within whose jurisdiction the arrest is sought to be

           effected can naturally have jurisdiction to decide

           whether it thinks fit to grant anticipatory bail. The arrest

           is made with reference to a crime, at the behest of the

           police or Magistrate within whose jurisdiction the offence

           is alleged to be committed. Thus the court within whose

           jurisdiction the offence is alleged to have been

           committed is, without doubt, a court competent to

           exercise the powers to grant anticipatory bail.


                  12.  If thus there are two courts of concurrent

           jurisdiction empowered to grant anticipatory bail,-- the

           court within whose jurisdiction the offence is committed,

           and the court within whose territory the person is sought

           to be arrested - conflict of decision has to be avoided

           and inherent limitation is thus implicit in the exercise of

           this jurisdiction under S.438.       The anticipatory bail

    B.A. NO. 1163 OF 2010

                                          :: 16 ::

          granted by the High Court or Sessions Court within

          whose jurisdiction the offence is committed will enure

          beyond the territorial limits of that court as the arrest

          sought to be made is within reference to that specific

          crime or offence and the police can pursue the offender

          beyond its jurisdiction to enforce the arrest. In granting

          anticipatory bail in a State where the applicant is sought

          to be arrested, the High Court naturally has to restrict

          the relief and direct that in the event of the appellant's

          arrest in that State, he will be released on certain

          conditions. In the latter case, the High Court will not

          extent relief to arrests made beyond that State. In this

          view the residence of the accused may not be a relevant

          factor to fix jurisdiction for this purpose."



          20. In the light of the decision of the Punjab and Haryana

    High Court in Ravinder Mohan V. State of Punjab: (1984 Crl.L.J.

    71) taking a contrary view, the question was considered by a

    Division Bench of this Court in Madhusoodanan V. Superintendent

    of Police: (1992 (2) KLT 83). The Division Bench confirmed the

    decision in C.I.Mathew V. Government of India: (1984 KLT 942).



          21. In Shree Baidyanath Ayurved Bhawan Private Limited

    V. State of Punjab and others: (2009) 9 SCC 414), it was held:

    B.A. NO. 1163 OF 2010

                                           :: 17 ::




                  "For the purpose of grant of anticipatory bail, the

           Court of Session or the High Court must take into

           consideration the ingredients therefor as laid down in

           Section 438 of the Code of Criminal Procedure.

           Ordinarily, an order granting anticipatory bail should not

           be for an indefinite period, particularly when the FIR had

           been in a police station of another State."



           22.    In the light of the decisions referred to above, there

    cannot be any doubt that this Court has jurisdiction to entertain the

    Bail Application and grant appropriate relief.



           23.    The next question to be considered is whether the

    petitioners are entitled to the reliefs prayed for. The petitioners are

    doctors. They are working at Ernakulam. They have permanent

    abode.     It cannot be believed that they would make themselves

    scarce, if bail is granted.       The petitioners have expressed their

    readiness to co-operate with the investigation. They even expressed

    their willingness for a search of their residence and office premises

    pending consideration of the Bail Application. There was an attempt

    to arrest the first petitioner. It is stated that he was dragged out from

    B.A. NO. 1163 OF 2010

                                        :: 18 ::

    the hospital where he was working. The interim order passed by this

    Court was in force at that time. The warrant for arrest specifically

    states that the accused shall not be arrested if an order of the

    nature mentioned therein is produced by the accused. The first

    petitioner states that though he produced the interim order passed

    by this Court, the police officer from Punjab tried to arrest him and

    humiliate him.



           24. In the facts and circumstances mentioned above, I am of

    the view that the petitioners are entitled to relief in this Bail

    Application. The Bail Application is disposed of as follows:

    The petitioners, if arrested within a period of two months from today,

    within the State of Kerala, on the basis of the warrants of arrest

    issued by the Sub Divisional Judicial Magistrate, Rajpura, Punjab in

    Crime No.30 of 2010 of Rajpura City Police Station, or if arrested

    within a period of two months, within the State of Kerala, by the

    investigating officer or any other police officer in connection with

    Crime No.30 of 2010 of Rajpura City Police Station, they shall be

    released on bail on their furnishing bond for Rs.25,000/- each with

    two solvent sureties for the like amount to the satisfaction of the

    Chief Judicial Magistrate, Ernakulam. In the event of their arrest, the

    B.A. NO. 1163 OF 2010

                                        :: 19 ::

    petitioners shall also surrender their passports before the Chief

    Judicial Magistrate, Ernakulam. If any of the petitioners does not

    hold an Indian Passport, he/she shall file an affidavit to that effect

    before the Chief Judicial Magistrate, Ernakulam. The petitioners

    shall make themselves available for interrogation by the investigating

    officer, in the office of the City Police Commissioner, Ernakulam, on

    such date or dates as intimated by the City Police Commissioner,

    Ernakulam. The petitioners shall appear before the Sub Divisional

    Judicial Magistrate, Rajpura, within two months, unless otherwise it

    becomes unnecessary in view of an order passed by any Court

    having jurisdiction.



           The Registry will communicate a copy of this Order to the

    Chief Judicial Magistrate, Ernakulam. Hand over copy to all the

    counsel appearing in the case.




                                                      (K.T.SANKARAN)
                                                              Judge
    ahz/




     
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