Jabir, Anas and Mohammed Azhurudheen P C v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2428 OF 2024 ``` ``` CRIME NO.738/2023 OF NADAPURAM POLICE STATION, KOZHIKODE ``` ``` AGAINST THE ORDERIN CRMC NO.342 OF 2024 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE ``` ## `PETITIONERS:` ``` 1JABIR AGED 29 YEARS S/O ABOOCKER, PERUVAN VEETTIL HOUSE, PULIYAV POST, CHEKKIAD, VATAKARA TALUK, PIN – 673509 2ANAS AGED 29 YEARS S/O KUNJALI, THAYYULLATHI THAZHAKUNIYIL HOUSE, PULIYAV POST, CHEKKIAD, VATAKARA TALUK, PIN – 673509 3MOHAMMED AZHURUDHEEN P C AGED 24 YEARS S/O MAHMOOD, PARACHALIL HOUSE, PULIYAV POST, CHEKKIAD, VATAKARA TALUK, PIN – 673509 BY ADVS.S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN NOURIN S. FATHIMA ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA (CRIME NO 738/2023 OF NADAPURAM POLICE STATION), PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.2428/2024_ _-:2:-_ _Dated this the 1[st] 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 Nos. 1 to 3 in Crime No.738/2023 of Nadapuram Police Station, Kozhikode, registered against the accused, for allegedly committing the offences punishable under Sections 341, 324, 326, 307 & 506(ii) read with Section 34 of the Indian Penal Code, 1860, (‘IPC’, for short). The petitioners were arrested on 08.02.2024. 2. The crux of the prosecution allegation is that: on 02.11.2023, at around 20.00 hours, the accused, in furtherance of their common intention, formed an unlawful assembly with dangerous weapons and, on seeing the de-facto complainant, chased him, shouting that they would kill him. The de-facto complainant fell on the road and the accused Nos.1 to 3 hit him with _B.A.No.2428/2024_ _-:3:-_ iron rods on his left shoulder, causing injuries to him. The accused Nos.1 & 2 also attempted to strike on the neck of the de-facto complainant with swords with the intention to murder him, and the third accused hit him on his left wrist and left knee and caused grievous injuries to the de-facto complainant. Thus, the accused have committed the above offences. 3. Heard; Sri. S. Rajeev, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioners are totally innocent of the accusations levelled against them. The offence under Sections 326 & 307 of the IPC will not be attracted to the facts of the case. In any given case,the petitioners have been in judicial custody since 08.02.2024, which is 53 days, the investigation in the case is complete, and recovery has _B.A.No.2428/2024_ _-:4:-_ been effected. Therefore, the petitioners’ continued detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. He contended that the investigation in the case is still in progress. He also submitted that the petitioners, in furtherance of their common intention, had attempted to murder the de-facto complainant. If the petitioners are released on bail, there is every likelihood of them interfering with the investigation. Nonetheless, he conceded to the fact that the petitioners have been in judicial custody for the last 53 days, the investigation in the case is practically complete, and the petitioners do not have any criminal antecedents. 6. On an evaluation of the materials on record, it is seen that the petitioners, in furtherance of their common intention, had attempted to murder the _B.A.No.2428/2024_ _-:5:-_ de-facto complainant. In the course of their attempt, the de-facto complainant suffered serious injuries. Nonetheless, it is an undoubted fact that the petitioners have been in judicial custody for the last 53 days, and the persons do not have criminal antecedents. 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 a rule and putting a person in jail is an exception. Even though the grant of bail is entirely the _B.A.No.2428/2024_ _-:6:-_ 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. After bestowing my anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, especially taking into account the fact that the petitioners have been in judicial custody for the last 53 days, that the investigation in the case is complete, that the petitioners are persons with any criminal antecedents _B.A.No.2428/2024_ _-:7:-_ and that the recovery has been effected, I am of the definite view that the petitioners’ 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 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 Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is laid, whichever is earlier. They shall also appear before the Investigating Officer as and when required; - (ii) The petitioners shall not directly or indirectly make any inducement, threat or procure to any _B.A.No.2428/2024_ _-:8:-_ 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 passports, they shall file affidavits 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. - (vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. _B.A.No.2428/2024_ ## _-:9:-_ (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 Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and Anr.** [2020 (1) KHC 663]. Sd/- ## **C.S.DIAS,JUDGE** DST/01.04.24 //True copy// P.A. To Judge