Faizal v. State

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 BAIL APPL. NO. 5091 OF 2024 ``` ``` CRIME NO.232/2024 OF Nooranadu Police Station, Alappuzha ``` ``` -------------- ``` ## **`PETITIONER/ACCUSED No.8 :-`** ``` FAIZAL, AGED 30 YEARS S/O.ABDUL RASHEED, PADINJAREKKARA VEEDU, ATHIKKATTUKULANGARA PO, PALAMEL, MAVELIKKARA, ALAPPUZHA, PIN - 690 504 ``` ``` BY ADVS. ANANDHU SATHEESH V.G.SURESH DRISYA DILEEP SREEDEVI S. ``` ## **`RESPONDENT/STATE :-`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 STATION HOUSE OFFICER,`** ``` NOORANAD POLICE STATION, KAYAMKULAM - PATHANAPURAM RD, NOORANAD, PALAMEL, ALAPPUZHA, PIN - 690 504 ``` ``` BY SMT.SEETHA S., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BAIL APPL. NO. 5091 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R Dated this the 24th day of July, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 8[th] accused in Crime No.232/2024 of the Nooranadu Police Station, Alappuzha, which is registered against the accused, for allegedly committing the offences punishable under Sections 341, 365, 342, 323, 324, 395 and 506(ii) of the Indian Penal Code and Section 27 of the Arms Act. The petitioner was arrested and remanded to judicial custody on 15.05.2024. 2. The essence of the prosecution case is that; the accused, in furtherance of their common intention and due to a misunderstanding, had on 18.02.2024, at around 22:30 hrs., intercepted the motorcycle of the son of the de facto complainant named Arun Krishnan (victim) and the first accused put a sword on his neck and intimidated and threatened that they would murder him. At that time, the accused 1, 5 to 7 forcefully took the victim into a car and beat him. The tenth accused robbed the mobile phone of ``` BAIL APPL. NO. 5091 OF 2024 ``` ``` -: 3 :- ``` the victim and accused 2 and 10 physically assaulted him, and the accused wrongfully confined him till 19:30 hrs. on 19.02.2024. Thus, the accused have committed the above offences. 3. Heard; Sri.Anandhu Satheesh, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of the FIR would show that there is no specific overt act alleged against the petitioner other than the fact that he was present along with the accused 3 to 7 in the car. The specific allegation is attributed against the first accused, who had allegedly placed a sword on the neck of the victim and intimidated him. It is the accused 2 and 10 who physically assaulted the victim. Therefore, the offences under Sections 365 and 395 of the IPC cannot be attributed against the petitioner. In any given case, the ``` BAIL APPL. NO. 5091 OF 2024 ``` ``` -: 4 :- ``` petitioner has been in judicial custody for the last 70 days, the investigation in the case is complete and recovery has been effected. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, _inter alia,_ contending that the petitioner is an inveterate offender since he is involved in 12 other crimes of the Nooranadu Police Station for allegedly committing various offences of the Indian Penal Code. There is a specific allegation against the petitioner that he was present in the car along with the other accused when the victim was abducted. Since the petitioner is a habitual offender, if he is released on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed. 6. The learned counsel for the petitioner refuted the submissions of the learned Public Prosecutor that the ``` BAIL APPL. NO. 5091 OF 2024 ``` ``` -: 5 :- ``` petitioner is a habitual offender. She referred to Annexures A2(a) to A2(c) to substantiate that the petitioner has been acquitted in three crimes and four crimes have been registered for offences under Section 279 of the IPC and Section 118(a) of the Kerala Police Act. According to him, the petitioner can only be said to be involved in four crimes as of now. Moreover, out of the four crimes, two crimes are of the years 2014 and 2016. Hence, the petitioner cannot be branded as a habitual offender. 7. The prosecution allegation is that; the petitioner along with the other accused had, in furtherance of their common intention, abducted the victim and kept him under their wrongful confinement for a day and also assaulted him. A close reading of the FIR would show that it was the first accused, who intimidated the victim and it was the accused 2 and 10 who physically assaulted him. The allegation against the petitioner is that he travelled along with the accused 3 to 7 in the car. However, these ``` BAIL APPL. NO. 5091 OF 2024 ``` ``` -: 6 :- ``` are all matters to be investigated and ultimately decided at the time of trial. The fact remains that the petitioner has been in judicial custody for the last 70 days, the investigation in the case is complete and recovery has been effected. 8. It is well settled in **Hussainara Khatoon (I)** v. **Home Secy., State of Bihar** [(1980) 1 SCC 81], that merely because a person has an antecedent, the same shall not be treated as a ground to deny bail to that person. 9. 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. 10. In **State of Kerala** v. **Raneef** [(2011) 1 SCC 784], the Honourable Supreme Court has declared that ``` BAIL APPL. NO. 5091 OF 2024 ``` ``` -: 7 :- ``` 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. 11. The principle that bail is the rule and jail is an exception is the touch stone of Article 21 of the Constitution of India. The right to bail cannot be denied merely due to the sentiments of the society. 12. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on considering the fact that the petitioner has been in judicial custody for the last 70 days, the investigation in the case is complete and recovery has been effected, I am of the firm view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the application, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him ``` BAIL APPL. NO. 5091 OF 2024 ``` ``` -: 8 :- ``` 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 on - Investigating Officer every Saturday between 9 a.m. and 11 a.m. till the final report is laid. The petitioner shall also appear before the Investigating Officer on every third Saturday between 9 a.m. and 11 a.m. till the conclusion of the trial in Crime No.232/2024. 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; ``` BAIL APPL. NO. 5091 OF 2024 ``` ``` -: 9 :- ``` - (iv) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Alappuzha without the previous permission of the jurisdictional court. - (v) 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; - (vi) 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 on the same, in accordance with law. - (vii) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. - (viii) Needless to mention, it would be well within the powers of the Investigating Officer to ``` BAIL APPL. NO. 5091 OF 2024 ``` ``` -: 10 :- ``` 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** Jvt/24.7.2024 ``` BAIL APPL. NO. 5091 OF 2024 ``` ## `-: 11 :-` ## **`APPENDIX OF BAIL APPL. 5091/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure A1A TRUE COPY OF THE ORDER DATED 05/06/2024 OF THE HON'BLE COURT OF THE SESSIONS JUDGE, ALAPPUZHA IN CRL.M.C. NO. 69/2024 ``` - **`Annexure A2(a) A true copy of the acquittal order in crime no. 1538/2013 of Nooranad Police Station obtained from the official site of district courts in Kerala`** - **`Annexure A2(b) A true copy of the acquittal order in crime no. 1209/2016 of Nooranad Police Station obtained from the official site of district courts in Kerala`** - **`Annexure A2(c) a true copy of the acquittal order in crime no. 1711/2019 of Nooranad Police Station obtained from the official site of district courts in Kerala`** - **`Annexure A3(a) A true copy of the case status in Crime no. 2687/2016 of Nooranad Police Station obtained from the official site of district courts in Kerala`** - **`Annuxure A3(b) A true copy of the case status in crime no. 371/2023 of Nooranad Police Station obtained from the official site of district courts in Kerala`**