Muhammad Salih, Muhammad Musthafa @ Shafi and Nauful v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 ``` ## `BAIL APPL. NO. 1080 OF 2024` ``` CRIME NO.64/2024 OF KODUNGALLUR POLICE STATION, THRISSUR ``` ## `PETITIONERS:` ``` 1MUHAMMAD SALIH, AGED 24 YEARS S/O. SHAFEEK, ADIMAPARAMBIL HOUSE, KODUNGALLUR JTS DESOM, LOKAMALESWARAM VILLAGE, NOW RESIDING AT RENTED HOUSE AT ANCHAPALAM, KODUNGALLUR, THRISSUR DISTRICT, PIN – 680669 2MUHAMMED MUSTHAFA @ SHAFI, AGED 23 YEARS S/O. ISMAYIL, KOMBANEZHATH HOUSE, MENON BAZAR DESOM, AZHIKODE (P.O), KODUNGALLUR, THRISSUR DISTRICT, PIN – 680666 3NAUFAL, AGED 21 YEARS S/O. RIYAS, KUZHIKKANDATHIL HOUSE, MENON BAZAAR DESOM, AZHIKKODU VILLAGE, NOW RESIDING NEAR KADAPPUR CHURCH, ERIYAD, AZHIKODE (P.O), KODUNGALLUR, THRISSUR DISTRICT, PIN – 680666 ``` ``` BY ADV NIREESH MATHEW ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN – 682031 ``` ## `OTHER PRESENT:` ``` PP SMT SHYNIMOLE V O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.1080/2024_ _-:2:-_ Dated this the 7[th] day of March, 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.64/2024 of Kodungallur Police Station, Thrissur, registered against the accused for allegedly committing the offences punishable under Sections 341, 323, 324, 326, 307, 506(ii) & 427 read with Section 34 of the Indian Penal Code, 1860. The petitioners were arrested on 05.01.2024. 2. The essence of the prosecution case is that: on 01.01.2024, at around 16.15 hours, the accused in furtherance of their common intention, out of their previous animosity towards the first informant and in an intention to murder him, using dangerous weapon, hit the first informant and his friends on their heads and hands. The accused also destroyed the motorcycle of the first informant and committed mischief to the _B.A.No.1080/2024_ _-:3:-_ tune of Rs.15,000/-. Thus, the accused have committed the above offences. 3. Heard; Sri. Nireesh Mathew, the learned counsel appearing for the petitioners and Smt. Shynimol V.O., the learned Public Prosecutor appearing for the respondent. 4. The learned Counsel for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. They have been falsely implicated in the crime. In any case, the petitioners have been in judicial custody since 05.01.2024, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioners’ further detention is not necessary. Hence, the petitioners may be released on bail. 5. The learned Public Prosecutor opposed the application. She contended that the accused are persons with criminal antecedents. The injured had _B.A.No.1080/2024_ _-:4:-_ suffered serious injuries. The investigation in the case is not complete. Hence, the application may be dismissed. 6. The crux of the prosecution allegation is that the accused in furtherance of their common intention to murder the first informant and his friends, assaulted them and caused grievous injuries to them. Thus, the petitioners have committed the above offences. 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 a 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 _B.A.No.1080/2024_ _-:5:-_ 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. 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. On an anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, especially after taking into account the fact that the petitioners have been in judicial custody since 05.01.2024, that the _B.A.No.1080/2024_ _-:6:-_ investigation in the case is practically complete and 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 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 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 person acquainted with the facts of the case so as to dissuade them from disclosing such facts _B.A.No.1080/2024_ _-:7:-_ 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. - (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to _B.A.No.1080/2024_ _-:8:-_ 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/07.03.24 //True copy// P.A. To Judge