Farijul Islam and Amradul Islam v. State of Kerala and another

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF APRIL 2024 / 5TH VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 3374 OF 2024 ``` ``` CRIME NO.3/2024 OF Ernakulam South Police Station, Ernakulam ``` ``` AGAINST THE ORDER DATED 12.04.2024 IN CRMP NO.4109 OF 2024 OF CHIEF JUDICIAL MAGISTRATE, ERNAKULAM PETITIONERS/ACCUSED 1ST AND 2ND: ``` - **`1 FARIJUL ISLAM, AGED 34 YEARS C/O HAREJ ALI, BARALIMARI PART, JORBEEL, MARIGAON, ASSAM, PIN - 782121`** - **`2 AMRADUL ISLAM, AGED 27 YEARS HOUSE NO.163, BARALIMARI PART, JORBEEL, MARIGAON, ASSAM 782121`** ``` BY ADVS. P.M.HABEEB YESMA D. ELAVANTHARA SILPA V. CHANDRAN ``` ## **`RESPONDENTS /STATE:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REP BY THE SUB INSPECTOR OF ERNAKULAM SOUTH RPF, PIN - 682031 ``` ``` 2INSPECTOR OF POLICE RAILWAY PROTECTION FORCE, SOUTH RAILWAY STATION, ERNAKULAM, PIN- 682016, IS IMPLEADED AS ADDL. R2 AS PER ORDER DATED 25/04/2024 IN CRL.MA.1/2024. ``` ``` BY ADV SHRI.T.C.KRISHNA, SCGC ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.3374 of 2024** ``` 2 ``` ## **Dated this the 23[rd] 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 2 in Crime No.3/2024 of the Ernakulam South Police Station, Ernakulam, registered against the accused for allegedly committing the offence under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966. The petitioners were arrested on 2.4.2024. 2. The essence of the prosecution case, is that; on 02.04.2024, at around 3.40 hours, the railway officials found the accused 1 and 2 lifting a cast iron pot from the Mattanchery Halt Railway Station Yard area. During the course of interrogation, the accused confessed that they have already stolen three other cast iron pots worth Rs.5,250/-. Thus, the accused have committed the above offence. ## **B.A. No.3374 of 2024** ## **`3`** 3. Heard; Sri. P.M. Habeeb, the learned counsel appearing for the petitioners, Smt. Neema T.V. the learned Senior Public Prosecutor and Sri. T.C. Krishna, the learned Senior Panel Counsel for the additional second respondent. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The petitioners have been implicated solely on the basis of their confession. In any given case, the petitioners have been in judicial custody since 2.4.2024, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed. 5. The learned Senior Panel Counsel opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the offences committed by the petitioners are serious and grave in **B.A. No.3374 of 2024** ``` 4 ``` nature. The petitioners are natives of Assam. They are not permanent residents of the state of Kerala. If the petitioners are released on bail, there is every likelihood of them fleeing from justice. Moreover, the stolen articles have not been recovered because the petitioners have sold them in a scrap shop in Ernakulam. Therefore, the application may be dismissed. 6. The prosecution allegation is that, the accused robbed cast iron pots of the Railway administration having a value of Rs.5,250/-. The fact remains that the petitioners have been in judicial custody since 2.4.2024, the investigation in the case is practically complete and recovery has been effected. 7. It is well settled in **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], that merely because a person who does not have roots in a State, the same shall not be treated as a ground to deny bail to the accused. The Court has to take into consideration the various parameters laid down by the **B.A. No.3374 of 2024** ``` 5 ``` Honourable Supreme Court in the said decision at the time of considering the bail application. 8. 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. 9. 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 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. 10. In **State of Kerala v. Raneef** , [(2011) 1 SCC **B.A. No.3374 of 2024** ``` 6 ``` 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. 11. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 12. The principle that bail is the rule and jail is an exception is on 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. 13. On an anxious consideration of the facts, the ## **B.A. No.3374 of 2024** ## **`7`** rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioners have been in judicial custody since 2.4.2024, the investigation in the case is practically complete and recovery has been effected, and further the petitioners do not have any criminal antecedents, I am of the view that the petitioners’ further detention is not necessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. 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 Tuesdays and Saturdays between 9 a.m. and 11 a.m till the final report is laid. ``` 8 ``` ## **B.A. No.3374 of 2024** They shall also appear before the Investigating Officer on every Saturday till the culmination of the proceedings in Crime No.3/2024; (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 them 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 passport, they shall file an affidavit to the effect before the court below on the date of execution of the bond; ``` 9 ``` ## **B.A. No.3374 of 2024** - (v) The petitioners shall not leave the jurisdiction limits of Court of Session, Ernakulam, without the previous permission of the jurisdictional court. (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 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 petitioners even while the petitioners are on bail as laid down by the Hon'ble ``` 10 ``` ## **B.A. No.3374 of 2024** Supreme Court in **Sushila Aggarwal v. State (NCT of** **Delhi) and another [2020 (1) KHC 663].** **Sd/-** **C.S.DIAS, JUDGE** mtk/23/4/2024