Muhammed Nafi v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 1652 OF 2024`** ``` CRIME NO.111/2024 OF MELATTUR POLICE STATION, MALAPPURAM AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.177 OF 2024 OF DISTRICT COURT& SESSIONS COURT,MANJERI ``` ## **`PETITIONER/ACCUSED:`** ``` MUHAMMED NAFI AGED 30 YEARS S/O.SALEEM, POTHIYIL HOUSE, MANNARKKAD, PALAKKAD DISTRICT, PIN - 679325 BY ADVS. T.K.SANDEEP SWETHA R. ``` ## **`RESPONDENT:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV SMT SEETHA S. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.1652 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 1652 OF 2024 ------------------------------------------------------Dated this the 5[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 first accused in Crime No.111/2024 of the Melattur Police Station, Malappuram, registered against the accused (3 in number) for allegedly committing the offences punishable under Sections 341, 323, 294(b), 506(i) and 308 read with Section 34 of the Indian Penal Code. The petitioner was arrested on 30.01.2024. 2. The essence of the prosecution case is that: on 29.01.2024 at around 19.45 hours, the accused in furtherance of their common intention and out of previous animosity towards the defacto complainant, ``` 3 ``` ## **`BAIL APPL. NO.1652 OF 2024`** the first accused restrained the defacto complainant and abused him in vulgar language and, thereafter, brandished him with a knife. The accused 2 and 3 also abused him in vulgar language. Had the defacto complainant not evaded the attack, he would have lost his life. Thus, the accused have committed the above offences. 3. Heard; Sri. T. K. Sandeep the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that, petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of Annexure I FIR would substantiate that the offence under Section 308 IPC will not be attracted. The said offence has been incorporated for the sole purpose of denying bail to the ``` 4 ``` ## **`BAIL APPL. NO.1652 OF 2024`** petitioner. The petitioner has been in judicial custody since 30.01.2024, which is more than 30 days, that the investigation in the case is practically complete and recovery has been effected, the petitioner’s further detention is not necessary. Hence, the bail application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that the petitioner has criminal antecedents. Petitioner is involved in 10 other cases of similar nature. She further submitted that the investigation of the case is in progress. If the petitioner is released on bail, there is every likelihood of him committing similar offences. She made available the Accident Register cum Wound Certificate of the defacto complainant to substantiate her assertions. 6. Learned counsel for the petitioner refuted the submission of the learned Public Prosecutor, submitting ``` 5 ``` ## **`BAIL APPL. NO.1652 OF 2024`** that out of the 10 crimes, 5 crimes are prior to the year of 2020. The said five cases have already concluded. The other five cases, the offences are all bailable. Therefore, the submission of the learned Public Prosecutor is wrong. Moreover, it is well settled that the bail should not be denied to an accused merely on the ground of his antecedents. 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 ``` 6 ``` ``` BAIL APPL. NO.1652 OF 2024 ``` 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. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, particularly after going through the Accident Register cum Wound Certificate of ``` 7 ``` ## **`BAIL APPL. NO.1652 OF 2024`** the injured dated 29.01.2024 issued by the District Hospital, Perinthalmanna and finding that the defacto complainant had only pain in his abdomen and elbow, and on prima facie being satisfied that the offence under Section 308 IPC may not be attracted, that the petitioner has been in judicial custody for more than a month, that the investigation in the case is practically complete and the recovery has been effected, I am of the definite view that, notwithstanding the alleged antecedents of the petitioner, the petitioner is entitled to be released on bail. Hence, I am inclined to allow the bail application. 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 ``` 8 ``` ``` BAIL APPL. NO.1652 OF 2024 ``` 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 for a period of one month or till the final report is laid, whichever is earlier. 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; ``` 9 ``` ## **`BAIL APPL. NO.1652 OF 2024`** - 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 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 ``` 10 ``` ``` BAIL APPL. NO.1652 OF 2024 ``` 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** BR ``` 11 ``` ``` BAIL APPL. NO.1652 OF 2024 ``` ## **`APPENDIX OF BAIL APPL. 1652/2024`** ``` PETITIONER’S ANNEXURES Annexure ITRUE COPY OF THE FIR DATED 30.01.2024 IN CRIME 111/2024 OF MELATTUR POLICE STATION Annexure IITRUE COPY OF THE FIR IN CRIME NO 135/2024 DATED 05.02.2024 ALONG WITH COMPLAINT TO SUPERINTENDENT OF POLICE Annexure IIITRUE COPY OF THE FIR DATED 12.11.2020 IN CRIME 524/2020 OF MELATTOOR POLICE STATION Annexure IVTRUE COPY OF THE ORDER OF THE SESSIONS COURT MANJERI IN CRL.MC NO.177/2024 DATED 20.02.2024 ``` ## **`RESPONDENT’S ANNEXURES: NIL`**