Ishak.K v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 3252 OF 2024 ``` ``` CRIME NO.388/2022 OF CHOKLI POLICE STATION, KANNUR AGAINST THE ORDER/JUDGMENT DATED 09.04.2024 IN CRMC NO.687 OF 2024 OF DISTRICT COURT & SESSIONS COURT,THALASSERY PETITIONER/ACCUSED: ``` ``` ISHAK.K AGED 34 YEARS S/O. ISMAIL, VALIYA VILAKAM, T.C. NO.45/122, BHEEMAPALLI, VALAKKADAV.P.O, MUTTUTHARA VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695008 ``` ``` BY ADVS. CIBI THOMAS G.KRISHNAKUMARI ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2THE STATION HOUSE OFFICER CHOKLI POLICE STATION, CHOKLI. P.O, KANNUR DISTRICT, PIN - 670672 ``` ## **`OTHER PRESENT:`** ## **`SR PP T V NEEMA`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.3252 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 third accused in Crime No.388/2022 of the Chokli Police Station, Kannur, registered against the accused for allegedly committing the offences under Sections 392, 413 and 201 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 22.01.2024 2. The essence of the prosecution case, is that; on 18.8.2022, at around 10.30 hours, while the de facto complainant was walking along the road at Peringalam, the accused 1 and 2, in furtherance of their common intention, had snatched a 3 sovereign of gold chain of the de facto complainant. They sold the said chain to the **B.A. No.3252 of 2024** ``` 3 ``` third accused. Thus, the accused have committed the above offences. 3. Heard; Sri. Cibi Thomas, learned counsel appearing for the petitioner and Smt. Neema T.V. 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. He has been falsely implicated in the crime. A reading of the First Information Report would substantiate that the petitioner has no involvement in the snatching of the gold chain. The only allegation against the petitioner is that he purchased the gold chain from the accused 1 and 2. The petitioner is a fisherman by profession and he is the sole breadwinner of his family. In any given case, the petitioner has been in judicial custody for the last 90 days, the investigation in the case is complete and the ``` 4 ``` ## **B.A. No.3252 of 2024** final report has been laid. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner is a person with criminal antecedents. The petitioner is involved in other crimes of similar nature. If the petitioner is released on bail, there is a likelihood of him committing a similar offence. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the investigation in the case is complete and the final report has been laid. 6. On an evaluation of the allegations in the First Information Report and the Final report laid by the Investigating Officer, it can be gathered that it was the accused 1 and 2, who allegedly robbed the gold chain of the de facto complainant. The overt act alleged against ``` 5 ``` ## **B.A. No.3252 of 2024** the petitioner is that he consciously purchased the gold chain. The fact remains that the petitioner was arrested on 22.1.2024, the investigation in the case is complete and the final report has been laid. 7. Even though the petitioner moved a similar application for bail before the Court of Session, Thalassery, the same was dismissed by Annexure-I order, principally on the ground that the petitioner has criminal antecedents. 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. **B.A. No.3252 of 2024** ``` 6 ``` 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 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 **B.A. No.3252 of 2024** ``` 7 ``` 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 the touch stone of Article 21 of the Constitution of India. After 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. 13. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last 90 days, the investigation in the case is ``` 8 ``` ## **B.A. No.3252 of 2024** complete and the final report has been laid, notwithstanding the fact that the petitioner allegedly has criminal antecedents, I am of the view that the petitioner’s 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 petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh 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 Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the completion of trial in Crime No.388/2022. He shall also appear before the Investigating Officer as and when required; ``` 9 ``` ## **B.A. No.3252 of 2024** (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) The petitioner shall not leave the State of Kerala - till the conclusion of the trial in the present case. **B.A. No.3252 of 2024** ``` 10 ``` (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. **SD/-** **C.S.DIAS, JUDGE** rmm/23/4/2024