Anas and Muhammed Shafi v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 ``` ## **`BAIL APPL. NO. 2860 OF 2024`** ``` CRIME NO.298/2024 OF Vithura Police Station, Thiruvananthapuram ``` ## **`PETITIONERS/ACCUSED 1 AND 3:`** ``` 1 ANAS AGED 34 YEARS S/O NAZAR, KONIL VEEDU,THOLICODE P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695541 ``` ``` 2 MUHAMMED SHAFI AGED 39 YEARS S/O ABDUL RASHEED ASIF MANZIL, THOLICODE P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695541 ``` ## **`BY ADV RAJANA JOSE`** ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REP BY:PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT OF KERALA P.O, ERNAKULAM DISTRICT, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2860 of 2024** ``` 2 ``` ## **Dated this the 12[th] day of April, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 3 in Crime No.298/2024 of the Vithura Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offences under Sections 294(b), 506(ii), 323, 324, 452, 326 and 307 of the Indian Penal Code. The petitioners were arrested on 07.03.2024. 2. The crux of the prosecution case, is that; on 03.03.2024, at around 21.15 hours, the accused, in furtherance of their common intention, had criminally trespassed into the restaurant of the defacto complainant, uttered obscene words at him, and the first accused brandished a sword on the neck of the defacto **B.A. No.2860 of 2024** ``` 3 ``` complainant. Though the defacto complainant warded off the attack, he sustained a fracture on his left hand. The second accused stamped on his chest and abdomen and the other accused also assaulted him. Thus, the accused have committed the above offences. 3. Heard; Smt. Rajana Jose, the learned counsel appearing for the petitioners and Sri. C.S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The Investigating Officer has deliberately incorporated the offences under Sections 326 and 307 of the IPC to deny bail to the petitioners. In any given case, the petitioners have been in judicial custody since 07.03.2024, the investigation in the case is complete, and the recovery has been effected. Hence, the petitioners may be released on bail. ``` 4 ``` ## **B.A. No.2860 of 2024** 5. The learned Public Prosecutor opposed the application. He submitted that the investigation in the case is in progress. He also submitted that the first petitioner is a person with criminal antecedents, since he is involved in two other cases of similar nature. If the petitioners are released on bail, it would sabotage the investigation. Hence, the application may be dismissed. 6. On an evaluation of the materials placed on record, it can be gathered that the first accused had attacked the defacto complainant with a sword and he sustained a fracture on his left hand. There is no specific overt act alleged against the third accused, who only assisted the first accused. The fact remains that, the accused have been in judicial custody since 07.03.2024, which is 35 days, the investigation in the case is practically complete, and recovery has been effected. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is ``` 5 ``` ## **B.A. No.2860 of 2024** 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. 8. In **Dataram Singh v. State of U.P** ., [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is a 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. 9. Subsequently, in **State of Kerala v. Raneef** , [(2011) 1 SCC 784], the Honourable Supreme Court has again held that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under **B.A. No.2860 of 2024** ``` 6 ``` Article 21 of the Constitution. 10. After bestowing my anxious consideration of the facts, the materials placed on record, and the rival submissions made across the Bar, especially taking into consideration the fact that the petitioners have been in judicial custody since 07.03.2024, that the recovery has been effected, and that the investigation in the case is practically complete, I am of the definite view that the petitioners’ further detention is not necessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period, till the final report is laid, ``` 7 ``` ## **B.A. No.2860 of 2024** whichever is earlier. They shall also appear before the Investigating Officer as and when required; (ii) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioners shall not commit any offence while they are on bail; (iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits to the effect before the court below on the date of execution of the bond; - (v) In case of violation of any of the conditions ## **B.A. No.2860 of 2024** ## **`8`** mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (viii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].** **Sd/-** mtk/12.04.24 **C.S.DIAS, JUDGE** ``` 9 ``` ## **B.A. No.2860 of 2024** ## **`APPENDIX OF BAIL APPL. 2860/2024`** ## **`PETITIONER ANNEXURES`** ``` Annexure 1TRUE COPY OF THE F.I.R IN CRIME NO: NO:298/2024 OF VITHURA POLICE STATION, THIRUVANANTHAPURAM DISTRICT Annexure 2TRUE COPY OF THE ORDER IN CRL M.P NO:2258/2024OFJ.F.C.M(I),(FOREST) OFFENCES ```