Mahin S/o Manzoor v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 31[ST] DAY OF JULY 2024 / 9TH SRAVANA, 1946 BAIL APPL. NO. 5603 OF 2024 ``` ## **`CRIME NO.970/2023 OF VIYYUR POLICE STATION, THRISSUR`** ``` PETITIONER: ``` ``` MAHIN, AGED 22 YEARS MAHIN S/O MANZOOR, FATHIMA HOUSE, THEJUS NAGAR 76, THATTANMALA PO. KOLLAM DISTRICT, PIN - 691020 BY ADV SMT.AMRUTHA ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER, VIYYUR POLICE STATION THRISSUR DISTRICT, STATION HOUSE OFFICE VIYYUR POLICE STATION, THRISSUR DISTRICT, PIN - 680631 ``` ## **`BY SR PP SMT SEETHA S`** ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ``` 31.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.5603 of 2024 ``` ``` 2 ``` ## **`ORDER`** ## **Dated this the 31[st] day of July, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 7[th] accused in Crime No.970 of 2023 of the Viyyur Police Station, Thrissur which is registered against the accused persons for allegedly committing the offences punishable under Sections 143, 341, 323, 324, 353, 308 and 506(ii) r/w Section 149 of the Indian Penal Code, 1860 (for short, ‘IPC’). The petitioner was arrested and remanded to on judicial custody 08.01.2024. 2. The prosecution case, in brief, is that on 11.11.2023, at about 11.35 hours, the accused persons, who are all inmates of the Central Prison, Viyyur, formed an unlawful assembly and started to assault a convict named ‘Siyad’ with deadly weapons ``` B.A.No.5603 of 2024 ``` ``` 3 ``` and with the intention to murder. On seeing the incident, the Assistant Prison Officer (APO), Mr.Akhil Mohan attempted to intervene in the matter and tried to disburse of the accused. But, the accused threatened the APO (the de facto complainant) and deterred him from discharging his duties. Thus, the accused have committed the above offences. 3. Heard; Smt.Amrutha, the learned counsel appearing for the petitioner and Smt.Seetha S, the learned Senior Public Prosecutor appearing for the respondents. 4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. The petitioner is only the 7[th] accused in the crime. The other accused have already been enlarged on bail. The offence under Section 308 of the IPC has been deliberately incorporated by the Investigating Officer, with the ``` B.A.No.5603 of 2024 ``` ``` 4 ``` sole intention to see that the petitioner is perpetually incarcerated. In fact, by Annexure 2 order, the Court of Session, Thrissur has enlarged the 3[rd] accused on bail, who is similarly placed with the petitioner. The petitioner is in judicial custody for the last seven months, the investigation is complete and no recovery is to be effected. 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 an inveterate offender. The petitioner is an accused in six other crimes. It is while the petitioner was undergoing preventive detention, i.e., for a period of six months from 20.04.2023, that the petitioner got involved in the present crime. The petitioner has committed a heinous crime by obstructing the Assistant Prison Officer from discharging his official ``` B.A.No.5603 of 2024 ``` ``` 5 ``` duty. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. 6. On a close scrutiny of materials placed on record, it can be gathered that the allegations against the petitioner is that while he was undergoing preventive detention, the accused in furtherance of their common intention had assaulted one of the convicts and, thereafter, deterred the Assistant Prison Officer from discharging his official functions. Admittedly, the preventive detention order passed against the petitioner was from 20.04.2023. It is during the subsistence of the preventive detention order that the petitioner has committed the above offences in the prison. It is also on record that the petitioner has criminal antecedents. However, by Annexure 2 order, the Court of Session, Thrissur has enlarged the 3[rd] accused on bail, which is similarly ``` 6 ``` ## **`B.A.No.5603 of 2024`** placed to the petitioner. But, the petitioner’s application was dismissed by Annexure 3 order on the ground of criminal antecedents. Therefore, I find the contention of the learned counsel for the petitioner to be justifiable, that the petitioner is entitled to parity with the 3[rd] accused. 7. 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. 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 ``` B.A.No.5603 of 2024 ``` ``` 7 ``` solely on the ground of former conduct. 9. In a trailblazing decision in **Satender Kumar** **Antil v. CBI and another** [(2022) 10 SCC 51], the Hon’ble Supreme Court, after a meticulous survey of all the precedents on the law governing bail, has laid down exhaustive guidelines for the Courts while dealing with the bail applications. It is profitable to extract the relevant paragraphs of the decision in this context of the case on hand, which reads thus: “12. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India. This Court in Nikesh Tarachand Shah v. Union of India [Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 : (2018) 2 SCC (Cri) 302] , held that : (SCC pp. 22-23 & 27, paras 19 & 24) “19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] , the purpose of granting bail is set out with great felicity as follows : (SCC pp. 586-88, paras 27-30) ‘27. It is not necessary to refer to decisions which deal with the right to ordinary bail because ``` B.A.No.5603 of 2024 ``` ``` 8 ``` that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti, In re [Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476] , AIR pp. 479-80 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the “Meerut Conspiracy cases” observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [K.N. Joglekar v. Emperor, 1931 SCC OnLine All 60 : AIR 1931 All 504] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC ``` B.A.No.5603 of 2024 ``` ``` 9 ``` OnLine All 14 : AIR 1931 All 356] , AIR p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. 28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that : (SCC p. 242, para 1) “1. … the issue [of bail] is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. … After all, personal liberty of an accused or convict is ``` B.A.No.5603 of 2024 ``` ``` 10 ``` fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right.” 29. In Gurcharan Singh v. State (Delhi Admn.) [Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the Court, that : (SCC p. 129, para 29) “29. … There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.” 30. In American Jurisprudence (2nd Edn., Vol. 8, p. 806, para 39), it is stated: “Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.” It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.’ ``` B.A.No.5603 of 2024 ``` ``` 11 ``` 24. Article 21 is the Ark of the Covenant so far as the Fundamental Rights Chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights Chapter (along with Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution]. At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] .” **13.** Further this Court in Sanjay Chandra v. CBI [Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397] , has observed that : (SCC p. 52, paras 21-23) “21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be ``` B.A.No.5603 of 2024 ``` ``` 12 ``` a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.” ## **Presumption of innocence** 14. Innocence of a person accused of an offence is presumed through a legal fiction, placing the onus on the prosecution to prove the guilt before the court. Thus, it is for that agency to satisfy the court that the arrest made was warranted and enlargement on bail is to be denied.” ## 10. In **Sheikh Javed Iqbal** ’s case (supra), the ## Hon’ble Supreme Court has recently reiterated that ``` B.A.No.5603 of 2024 ``` ``` 13 ``` an accused is entitled to speedy trial. When the trial gets protracted, it is open for the prosecution to oppose the bail on the ground that the offence is serious. However, bail cannot be denied only on the ground that charges are very serious, though there is no end in sight for the trial to conclude. Once it is evident that a timely trial is not possible and the accused has suffered incarceration for a sufficient period of time, the Courts should ordinarily be obligated to enlarge the accused on bail, and attempts should be made by the Courts to balance the rights of the accused and the objections of the prosecution based on the fundamental rights guaranteed under Part-III of the Constitution of India. 11. On an overall consideration of facts and the rival submissions made across the bar, the materials placed on record and particularly considering the fact that the petitioner has been in judicial custody for the ``` 14 ``` ## **`B.A.No.5603 of 2024`** last six months, the preventive detention order has already lapsed, the investigation in the case is complete and the final report has been laid, I am of the firm view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the application subject to stringent conditions. In the result, the application is allowed by directing the petitioner to be released on bail on her 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 every second and fourth Saturday till the conclusion of the trial in Crime No.970/2023. He shall also appear before the Investigating Officer as and when required; ``` B.A.No.5603 of 2024 ``` ``` 15 ``` (ii) The petitioner shall not directly or indirectly make any inducement or threat to the victim or the witness or procure to any person acquainted with the facts of the case to dissuade them from disclosing such facts to the court or 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 territorial jurisdiction of the Court of ``` B.A.No.5603 of 2024 ``` ``` 16 ``` Session, Thrissur, without the previous permission of the jurisdictional court. (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. (viii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if to effect recoveries on the necessary, information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in ``` B.A.No.5603 of 2024 ``` ``` 17 ``` **Sushila Aggarwal v. State (NCT of Delhi) and Another** [2020 (1) KHC 663]. (ix) The observations made in this order are only for the purpose of considering the applications, and they shall not be construed as an expression on the merits of the case to be decided by jurisdictional Courts. Sd/- **C.S.DIAS JUDGE** NAB