Gafoor and others 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. 3505 OF 2024` ``` CRIME NO.160/2024 OF PATTAMBI POLICE STATION, PALAKKAD ``` ## `PETITIONERS:` ``` 1GAFOOR AGED 26 YEARS S/O.MUHAMMED ALI, KURUPPAN VALAPPIL HOUSE, PATTAMBI POST, PATTAMBI TALUK , PALAKKAD DISTRICT, PIN – 679303 2MUHAMMED HANEEFA AGED 36 YEARS S/O.HAMZA, PERINGATTUTHODI HOUSE, CHOORAKKODE, VALAPPUZHA POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN – 679336 3MUHAMMED SALIM AGED 39 YEARS S/O.HAMZA, APPAKANDATHIL HOUSE, UMMIKUNNU, PATTAMBI POST, PATTAMBI TALUK , PALAKKAD DISTRICT, PIN – 679303 4ASHIF AGED 33 YEARS S/O.USMAN, MUNDANATTIL HOUSE, UMMIKUNNU, PATTAMBI POST, PATTAMBI TALUK ,PALAKKAD DISTRICT, PIN – 679303 ``` ``` BY ADVS.R.SREEHARI HAMZA A.V. VIGNESH S. APARNA M.P. DHANYA C.R. ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2STATION HOUSE OFFICER PATTAMBI POLICE STATION, MAIN ROAD, ``` _B.A.No.3505/2024_ ## _-:2:-_ ``` PATTAMBI POST, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN – 679303 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3505/2024_ _-:3:-_ _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 accused Nos. 1, 2, 7 & 8 in Crime No.160/2024 of the Pattambi Police Station, Palakkad, registered against the accused (13 in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324, and 308 read with Section 149 of the Indian Penal Code,1860 (‘IPC’, for short), Section 118(e) of the Kerala Police Act,2011 and Section 11(1) (a) of the Prevention of Cruelty to Animals Act, 1960. The petitioners were arrested on 16.04.2024. 2. The crux of the prosecution allegation is that: on 03.03.2024 at around 21.30 hours, the accused, in prosecution of their common intention, had formed an unlawful assembly with dangerous weapons such as iron rods, knuckle dusters, gas cylinder tubes, chilly _B.A.No.3505/2024_ _-:4:-_ powder etc., and out of the previous animosity, restrained the Commandos Team in front of Krishi Bhavan, Pattambi while they were participating in the Parade with an elephant and the Band set. The first accused hit the first informant with the knuckle duster, the second accused hit him with a gas cylinder tube and the third accused struck him with a nunchakku. When the first informant’s brother attempted to intervene in the matter, the accused Nos.4 and 5 twisted his hand. The fourth accused also threw chilly powder at him. The first accused also hit him with a pipe and seventh accused sprayed pepper spray on the first informant’s head. Thus, the accused have committed the above offences. 3. Heard; Sri.R.Sreehari, the learned counsel appearing for the petitioners and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioners _B.A.No.3505/2024_ _-:5:-_ submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The offences under Sections 308 of the IPC and 118 (e) of the Kerala Police Act have been deliberately incorporated, only for the purpose of denying bail to the petitioners. In any given case, the petitioners have been in judicial custody since 16.04.2024, the investigation in the case is practically complete and recovery has been effected. By Annexure 5 order, this Court has already enlarged the other accused on bail in the same crime. Therefore, the petitioners are entitled to the benefit of a similar order. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. Nonetheless, she conceded to the fact that, by Annexure-5 order, the other accused in the crime have already been enlarged on bail. _B.A.No.3505/2024_ _-:6:-_ 6. On an evaluation of the materials on record, it can be seen that the petitioners, in prosecution of their common intention, had assaulted the first informant and his friends with dangerous weapons and caused injuries to them. However, the petitioners have been in judicial custody for the last one month and this Court has already enlarged the petitioners on bail in the connected crime as per Annexure 5 order. 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 _B.A.No.3505/2024_ _-:7:-_ 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 Article 21 of the Constitution. 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially considering the fact that the petitioners have been in judicial custody _B.A.No.3505/2024_ _-:8:-_ since 16.04.2024, the petitioners have no criminal antecedents, the investigation in the case is practically complete and recovery has been effected, I am of the 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 Officer on - Investigating every Saturday between 9 a.m. and 11 a.m for a period of one month or till the final report is laid, whichever is earlier. They shall also appear before the Investigating Officer as and when required; _-:9:-_ ## _B.A.No.3505/2024_ - (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 passport, 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; - (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 on the same, in accordance with law. _B.A.No.3505/2024_ _-:10:-_ - (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