Jamshad P.P 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. 3287 OF 2024 ``` ``` CRIME NO.108/2024 OF KODUVALLY POLICE STATION, KOZHIKODE ``` ## **`PETITIONER/1ST ACCUSED:`** ``` JAMSHAD P.P AGED 38 YEARS S/O. SAYYID, VARIKKATTIL HOUSE MANIPURAM POST, CHUNDAPPURAM KOZHIKODE DISTRICT, PIN - 673572 ``` ``` BY ADVS. LUIZ GODWIN D COUTH JOSE KURIAKOSE (VILANGATTIL) ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 SUB INSPECTOR OF POLICE KODUVALLY POLICE STATION KOZHIKODE DISTRICT, PIN - 673572`** ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.3287 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 first accused in Crime No.108/2024 of the Koduvally Police Station, Kozhikode, registered against the accused for allegedly committing the offences punishable under Sections 341, 326 and 307 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 14.02.2024. 2. The essence of the prosecution case is that; on 3.2.2024, at around 19 hours, the accused, in furtherance of their common intention, formed themselves into an unlawful assembly and the first accused stabbed the brother of the de facto complainant and his friend with a knife and caused grievous injuries **B.A. No.3287 of 2024** ``` 3 ``` to the brother of the de facto complainant. The accused 2 and 3 facilitated the first accused to inflict the injury. Thus, the accused have committed the above offences. 3. Heard; Sri.Luiz Godwin D Couth, learned counsel appearing for the petitioner and Sri.C.S. Hrithwik, 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. The Investigating Officer has deliberately incorporated Sections 326 and 307 of IPC to deny bail to the petitioner. A reading of the First Information Report would establish that the above offences will not be attracted in the facts of the case. In any given case, the petitioner has been in judicial custody for the last 70 days, the investigation in the case is practically complete ``` 4 ``` ## **B.A. No.3287 of 2024** and recovery has been effected. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that investigation in the case is in progress. He also submitted that the petitioner is a person with criminal antecedents, since he has committed offences under the NDPS Act and the Abkari Act. If the petitioner is released on bail, there is a likelihood of him committing similar offences. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, he stabbed the brother of the de facto complainant and his friend with a knife and caused grievous injuries to them. 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. **B.A. No.3287 of 2024** ``` 5 ``` 7. Even though the petitioner had filed a similar application before the Court of Session, Kozhikode, the same was dismissed by Annexure A1 order, principally on the ground that the investigation is in progress. 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. ``` 6 ``` ## **B.A. No.3287 of 2024** 10. 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. 11.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. 12. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable **B.A. No.3287 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. 13. The principle that bail is the rule and jail is an exception, which is the touch stone of Article 21 of the Constitution of India. Once 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. 14. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into consideration the fact that the petitioner has been in judicial custody for the last 70 days, the investigation in ``` 8 ``` ## **B.A. No.3287 of 2024** the case is complete and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. 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.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 Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required; - (ii) The petitioner shall not directly or indirectly ``` 9 ``` ## **B.A. No.3287 of 2024** 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) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of ``` 10 ``` ## **B.A. No.3287 of 2024** 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 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].** rmm/23/4/2024 **C.S.DIAS, JUDGE**