M D Mahar Ali and Saju Biswas v. State of Kerala (Bail Appl. Nos. 3662/2024 & 3969/2024)

## **`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. 3969 OF 2024 ``` ``` CRIME NO.494/2024 OF ALUVA EAST POLICE STATION, Ernakulam ``` ## **`PETITIONER/2ND ACCUSED:`** ``` SAJU BISWAS, AGED 22 YEARS S/O. AKASH BISWAS, CHAOPARA, JAIANGI, MURSHIDABAD, WEST BENGAL, PIN - 742035 ``` ``` BY ADVS. P.U.VINOD KUMAR S.M.PREM T.M.MUHAMMED MUSTHAQ ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.05.2024, ALONG WITH Bail Appl..3662/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. Nos.3662 & 3969 of 2024** ``` 2 ``` ## **`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. 3662 OF 2024 ``` ``` CRIME NO.494/2024 OF ALUVA POLICE STATION, ERNAKULAM PETITIONER/1ST ACCUSED: ``` ``` M D MAHAR ALI AGED 37 YEARS S/O NAJAR ALI, VII/TOWN-,MAJARAUMARI KACHARI SUB DIV,TEZPUR . SONITPUR DISTRICT ASSAM STATE, PIN - 782123 ``` ``` BY ADVS. SHYNI DAS J.S. APPU AJITH ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.05.2024, ALONG WITH BAIL APPL..3969/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. Nos.3662 & 3969 of 2024** ``` 3 ``` ## **Dated this the 20[th ] day of May, 2024** ## **COMMON ORDER** The applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.494//2024 of the Aluva Police Station, Ernakulam, registered against them for allegedly committing the offences punishable under Sections 411 and 413 r/w Section 34 of the Indian Penal Code. The petitioners were arrested on 17.03.2024. 2. The gist of the prosecution case is that; the accused were found in possession of eleven mobile phones which were received by them knowing it to be stolen property. Thus, the accused have committed the above offences. 3. Heard; Sri.Shyni Das J.S and Sri.P.U.Vinod ``` 4 ``` ## **B.A. Nos.3662 & 3969 of 2024** Kumar, learned counsel appearing for the petitioners and Smt. Seetha S and Sri.C.S. Hrithwik, the learned Senior Public Prosecutors. 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. There is no material to substantiate the accusations levelled against the petitioners. The petitioners have been in judicial custody for the last 63 days, the investigation in the case is complete and the final report has been laid. Moreover, the recovery has also been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the applications may be allowed. 5. The learned Public Prosecutors opposed the applications. They submitted that the petitioners are the natives of the State of West Bengal and have no roots in ``` 5 ``` ## **B.A. Nos.3662 & 3969 of 2024** Kerala. If the petitioners are enlarged on bail, there is every likelihood of them fleeing from justice. Moreover, it is learnt that the petitioners have antecedents. Hence, the applications may be dismissed. 6. The prosecution allegation against the petitioners is that they knowingly received stolen mobile phones from certain persons. 7. Even though the petitioners had filed Crl.M.C. No.1190/2024 before the Court of Session, Ernakulam, the same was dismissed by Annexure A order, principally on the ground that the petitioners have antecedents. However, there is no material to substantiate the antecedents of the petitioners. The fact remains that the petitioners have been in judicial custody for the last 63 days, recovery has been effected, the investigation is complete and the final report has been laid. ``` 6 ``` ## **B.A. Nos.3662 & 3969 of 2024** 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 ``` 7 ``` ## **B.A. Nos.3662 & 3969 of 2024** 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. 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. 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. 12. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into account the fact that the petitioners have been in judicial custody since 17.3.2024, the investigation in the case is ``` 8 ``` ## **B.A. Nos.3662 & 3969 of 2024** complete and the final report has been laid, notwithstanding the fact that the petitioners have no roots in the State of Kerala, following the principle laid down by the Honourable Supreme Court in **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], I am of the view that the petitioners can be released on bail, but subject to stringent conditions. In the result, the applications are 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 Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No.494/2024. They shall also appear before the ``` 9 ``` ## **B.A. Nos.3662 & 3969 of 2024** Investigating Officer as and when required; (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 he is 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) The petitioners shall also furnish their present **B.A. Nos.3662 & 3969 of 2024** ``` 10 ``` address, permanent address and mobile numbers before the Investigating Officer as well as the court below; (vi) The petitioners shall not leave the territorial jurisdiction of the Court of Session, Ernakulam without the previous permission of the jurisdictional court. (vii) 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. (viii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the ``` 11 ``` ## **B.A. Nos.3662 & 3969 of 2024** 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 another [2020 (1) KHC 663].** **Sd/-** rmm/20/5/2024 **C.S.DIAS, JUDGE**