Muhammad Afsal v. State of Kerala and Station House Officer, Chathannur Police Station, Chathannur

B. A. No. 2202 of 2024 -1- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 BAIL APPL. NO. 2202 OF 2024 ``` ``` CRIME NO.234/2024 OF CHATHANNOOR POLICE STATION, KOLLAM ``` ``` AGAINST THE ORDER DATED 06.03.2024 IN CMP NO.326 OF 2024 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, PARAVUR ``` ## **`PETITIONER/S:`** ``` MUHAMMAD AFSAL AGED 25 YEARS ``` ``` S/O SALAHUDEEN, ALSHAD MANZIL, MEENADU, KOLLAM- 691572, PIN - 691572 ``` ``` BY ADV R.KISHORE (KALLUMTHAZHAM) ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER CHATHANNUR POLICE STATION CHATHANNUR, PIN - 691572 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B. A. No. 2202 of 2024 -2- ## **O R D E R** Dated this the 26[th] day of March, 2024 The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 6[th] accused in Crime No. 234 of 2024 of the Chathannur Police Station, Kollam, registered against the accused (12 in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324 and 307 read with Section 149 of the Indian Penal Code. 2. The essence of the prosecution case is that: on 26.02.2024, at around 18:50 hours, the accused, in prosecution of their common intention, restrained the 1[st] informant and assaulted him. Thereafter, the 1[st] accused stabbed the 1[st] informant multiple times with a knife and he has suffered serious injuries. Thus, the accused have committed the above offences. 3. Heard Sri. R. Kishore, learned counsel for the petitioner and Smt. Seetha S., learned Public Prosecutor. 4. Learned counsel for the petitioner submitted that the B. A. No. 2202 of 2024 -3- petitioner is totally innocent of the accusation levelled against him. A reading of the First Information Statement would substantiate that the offence under Section 307 will not be attracted as against the petitioner. The said offence has been deliberately incorporated to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody since 04.03.2024, the investigation of the case, so far as the petitioner is concerned, is practically complete and the recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 5. Learned Public Prosecutor seriously opposed the application. She submitted that the investigation is in progress. She made available the accident register - cum - wound certificate of the 1[st] informant to substantiate the seriousness of the injuries suffered by him. Nonetheless, she conceded to the fact that it was the 1[st] accused who stabbed the 1[st] informant with a knife. She also stated that the recovery has been effected. 6. A reading of the Annexure A1 FIR would reveal that the B. A. No. 2202 of 2024 -4- specific overt act alleged in the crime is against the 1[st] accused, who inflicted the stab injury on the de facto complainant. The only allegation against the petitioner is that he along with the other accused facilitated the 1[st] accused to stab the 1[st] informant. 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 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. B. A. No. 2202 of 2024 -5- 9. 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. 10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, and especially taking into account the fact that there is no specific overt act against the petitioner in committing the offence punishable under Section 307 of the Indian Penal Code, further the petitioner has been in judicial custody since 04.03.2024, that the investigation in the case, so far as the petitioner is concerned, is practically complete and recovery has been effected, I am of the 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 B. A. No. 2202 of 2024 -6- 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 Tuesday and 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 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 B. A. No. 2202 of 2024 -7- 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 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]** **Sd/C. S. DIAS JUDGE** Eb B. A. No. 2202 of 2024 -8- ## **`APPENDIX OF BAIL APPL. 2202/2024`** ``` PETITIONER ANNEXURES Annexure :A1THE TRUE COPY OF THE FIR IN CRIME NUMBERED AS 234/2024 Annexure :A2THE TRUE COPY OF THE CMP NUMBERED AS 326/2024 DATED 6TH MARCH 2024 ```