Anwar v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946 ``` ## `BAIL APPL. NO. 3978 OF 2024` ``` CRIME NO.264/2024 OF ELOOR POLICE STATION, ERNAKULAM ``` ## `PETITIONER:` ``` ANWAR, AGED 44 YEARS S/O. ABDUL AZEEZ, KOLLAM PARAMBIL HOUSE, THAIKKATTUKKARA, COMPANYPADY, ERNAKULAM, PIN – 683501 ``` ``` BY ADVS.ASHEEK ANTONY C.P.TENNY ``` ``` RESPONDENT: ``` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3978/2024_ _-:2:-_ _Dated this the 20[th] day of May, 2024_ ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.264/2024 of the Eloor Police Station, Ernakulam, registered against the accused (two in number) for allegedly committing the offences punishable under Sections 324, 341 & 307 read with Section 34 of the Indian Penal Code, 1860. The petitioner was arrested on 15.03.2024. 2. The essence of the prosecution case is that: on 14.03.2024, at around 15 hours, the accused, in furtherance of their common intention, went to the workshop of the de-facto complainant and attacked him. The first accused stabbed the de-facto complainant and he sustained grievous injuries on his abdomen, shoulder and head. The other accused facilitated the first accused to inflict the injuries on the _B.A.No.3978/2024_ _-:3:-_ de-facto complainant. Thus, the accused have committed the above offences. 3. Heard; Sri. Asheek Antony, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. A reading of the remand report would substantiate that the specific overt act of causing injury to the de-facto complainant is against the first accused. The only overt act alleged against the petitioner is that he facilitated the first accused to commit the above offence. In any given case, the petitioner has been in judicial custody since 15.03.2024, which is 65 days, the investigation in the case is complete, final report has been laid and the recovery is also effected. Therefore, the petitioner’s further detention is not necessary. Hence, the _B.A.No.3978/2024_ _-:4:-_ petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. He submitted that the petitioner, along with the other two accused, had inflicted grievous injuries on the de-facto complainant. He made available the accident register-cum-wound certificate issued by the Government Medical College Hospital, Ernakulam, dated 14.03.2024, to substantiate the nature of injuries sustained by the de-facto complainant. He submitted that if the petitioner is let off on bail, there is every likelihood of him tampering with the evidence and intimidating the witnesses. Nonetheless, he conceded to the fact that the investigation in the case is complete and the final report has been laid on 23.04.2024. 6. The prosecution allegation against the accused is that, they in furtherance of their common intention, have inflicted grievous injuries on the _B.A.No.3978/2024_ _-:5:-_ de-facto complainant. The accident register-cum-wound certificate prima-facie substantiates the accusations of the prosecution to be correct, which is a matter of trial. However, the fact remains that the petitioner has been in judicial custody for the last 65 days, the investigation is complete, and the final report has been laid. 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 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 the rule and putting a person in jail is _B.A.No.3978/2024_ _-:6:-_ 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. In **State of Kerala v. Raneef** [(2011) 1 SCC 784], the Honourable Supreme Court has declared 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 Article 21 of the Constitution. 10. The principle that bail is the rule and jail is an exception, is the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. _B.A.No.3978/2024_ _-:7:-_ 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially considering the fact that the petitioner has been in judicial custody for the last 65 days, the investigation in the case is complete and final report has been laid, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) 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 petitioner shall appear before the Officer on - Investigating every Saturday between 9 a.m. and 11 a.m till the final report _B.A.No.3978/2024_ _-:8:-_ is laid. He shall also appear before the Investigating Officer as and when required; - (ii) The petitioner 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 petitioner shall not commit any offence while he is on bail; - (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit 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 mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders _B.A.No.3978/2024_ _-:9:-_ 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. - (vii)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 petitioner even while the petitioner is 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/- ## **C.S.DIAS,JUDGE** DST/20.05.24 //True copy// P.A. To Judge