High Court of KeralaSingle Judge2021-05-07Bail granted to the petitioners with conditions...

Muhammed Nishad & Abdul Majeed @ Bash v. State of Kerala

Case / Petition Number:Bail Appl. Nos. 3319 of 2021 & 3635 of 2021; Crime No. 27/2021, Melattur Police Station, Malappuram

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. KunhikrishnAN
Judgment Date: 2021-05-07
Court Decision / Holding: The Bail Applications were allowed. The petitioners are to be released on bail on executing bonds of Rs. 50,000 each with two solvent sureties for the like sum. They must appear before the Investigating Officer as required, shall not leave India without court permission, shall not commit any offence similar to the one charged, shall strictly follow Covid-19 guidelines, and shall not enter the Melattur jurisdiction until main eye-witnesses are examined, except for court appearances and investigations. If violated, bail may be cancelled.
Final Disposition: Bail granted to the petitioners with conditions under Section 439 CrPC.

Parties to the Case

Appellants / Petitioners

Muhammed Nishad
Moyin @ Vappu

Respondents

State of Kerala
Addl. R2 Aryadan Hassan

Legal Representation & Advocates

Counsels for Petitioners

• K. R. Arun Krishnan
• P. K. Varghese
• Sanjana Rachel Jose
• P. Y. Shanavas

Counsels for Respondents

• Public Prosecutor, State of Kerala
• Adv. Sooraj Elanjickal
• Public Prosecutor, C. N. Prabhakaran

Case Synopsis & Summary

These bail applications, Bail Appl. Nos. 3319 of 2021 and 3635 of 2021, arise from Crime No. 27/2021 of Melattur Police Station, Malappuram. The petitioners, Muhammed Nishad and Abdul Majeed @ Bash, are accused alongside others of offences under Sections 324, 307, 302 read with Section 34 IPC. They have been in custody since 29 January 2021; the investigation is complete and the final report filed. The State and Addl. R2 Aryadan Hassan (sought to be impleaded) oppose bail, arguing the offences are serious and may create law-and-order problems if released; the prosecution cites CCTV footage and the gravity of the crime; the victim’s counsel argues the offences are heinous. The court, noting the ongoing COVID-19 second wave and the need to minimize prison population in line with directions in Re: Contagion of COVID-19 Virus In Prisons and Chidambaram P v Directorate of Enforcement, emphasizes the presumption in favor of liberty, i.e., bail is the rule and jail the exception. Finding that the petitioners have been in custody for over 90 days and that the prosecution has not shown an irresistible risk of witness tampering beyond repair, the judge grants bail on stringent conditions: bonds of Rs.50,000 each with two solvent sureties, appearance before investigators, no leaving India, no entry into the Melattur jurisdiction except for trial appearances, adherence to COVID guidelines, and prohibition on committing further offences. The order is by Justice P. V. Kunhikrishnan and disposed of in a common order.

Provisions of Law Cited

Section 439 of CrPCSections 324, 307, 302 r/w Section 34 of IPC

Legal Doctrines & Maxims

Bail is the rule and jail is the exception
Life is more important than anything (contextual principle cited for COVID-19)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners’ counsel submitted that they have been in custody since 29.01.2021; the investigation is complete and final report filed. They are ready to abide by stringent conditions if bail is granted. One co-accused has already been released on bail. While the offence is serious, the petitioners argue COVID-19 risk, CCTV evidence, and that detention should be balanced against the right to fair trial. They urged the court to grant bail with conditions and rely on established bail principles.

Contentions of Respondents

The State contended that the offences are grave and release on bail would spawn law and order problems in the locality. The prosecution highlighted seriousness of the crime, with CCTV footage supporting overt acts, and urged stringent conditions or continued detention. The victim’s counsel argued the offences are heinous and warranted stringent scrutiny. Citing authorities, they emphasized that bail should not undermine the investigation and public safety. They also relied on precedents to stress the need for caution in a high-profile case.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Prasanthkumar Sarkar v. Ashish Chattergi	2010(14) SCC 496	Mentioned Only	Cited by counsel; used to illustrate bail-related principles but not explicitly applied by the Court in its reasoning.
Sarkar v. Ashish Chatterji	2010(14) SCC 496	Mentioned Only	Same cited authority as a general reference; referenced in the discussion without a binding application in the ruling.
Re: Contagion of COVID-19 Virus In Prisons case	Suo Motu Writ Petition(C) No.1 of 2020	Positive	The Court relied on directives from this case and related Full Bench directions to justify considering public health and prison-population concerns in bail decisions.
Chidambaram. P v Directorate of Enforcement	2019 (16) SCALE 870	Positive	Cited to reaffirm the bail principle that bail is the rule and jail is the exception, forming part of the rationale for granting bail.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 07TH DAY OF MAY 2021 / 17TH VAISAKHA, 1943** ## **Bail Appl..No.3319 OF 2021** **CRIME NO.27/2021 OF Melattur Police Station , Malappuram** ## **PETITIONER/S:** |**1**|**MUHAMMED NISHAD**| |---|---| ||**AGED 22 YEARS**| ||**KIZHAKKUMPARAMBAN HOUSE,**| ||**MADRASAPPADI,ORAVAMPURAM, NENMINI AMSOM,**| ||**THACHINGANADAM POST**| ||**676521**| |**2**|**MOYIN @VAPPU**| ||**AGED 47 YEARS**| ||**S/O MAMMUTTY, KIZHAKKUMPARAMBAN HOUSE,**| ||**MADRASAPPADI, ORAVAMPURAM, NENMINI AMSOM,**| ||**THACHINGANADAM POST**| ||**676521**| ||**BY ADVS.**| ||**SRI.K.R.ARUN KRISHNAN**| ||**SRI.P.K.VARGHESE**| ||**SMT.SANJANA RACHEL JOSE**| ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT**| ||**OF KERALA**| ||**682031**| |**2**|**ADDL.R2.ARYADAN HASSAN**| ||**(SOUGHT TO BE IMPLEADED)**| **R1 BY PUBLIC PROSECUTOR R2 BY ADV. SRI.SOORAJ ELANJICKAL** B.A.No.3319 & 3635 of 2021 ..2.. ## **R2 BY ADV. SRI.P.A.MOHAMMED SHAH** ## **OTHER PRESENT:** ## **SR.P.P.SRI.C.N.PRABHAKARAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.05.2021, ALONG WITH Bail Appl..3635/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.3319 & 3635 of 2021 ..3.. **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 07TH DAY OF MAY 2021 / 17TH VAISAKHA, 1943** **Bail Appl..No.3635 OF 2021** **CRIME NO.27/2021 OF Melattur Police Station , Malappuram** ## **PETITIONER/S:** **ABDUL MAJEED @ BASH AGED 39 YEARS KIZHAKKUMPARAMBAN HOUSE, MADRASSAPADI, ORAMPURAM, MALPPURAM DISTRICT 679325** **BY ADV. SRI.P.Y.SHANAVAS** **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** **R1 BY PUBLIC PROSECUTOR SR.P.P.SRI.C.N.PRABHAKARAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.05.2021, ALONG WITH Bail Appl..3319/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.3319 & 3635 of 2021 ..4.. ## **P.V.KUNHIKRISHNAN, J. ------------------------------------------B.A.No.3319 & 3635 of 2021 --------------------------------------------Dated this the 7[th] day of May, 2021** ## **ORDER** These Bail Applications are filed under Section 439 of Criminal Procedure Code was heard through Video Conference. Since these Bail Applications are filed by the accused in the same crime, I am disposing of these cases by a common order. 2. The petitioners are the accused in crime No.27/2021 of Melattur Police Station. The above case is registered against the petitioners and others alleging offences punishable under Sections 324, 307, 302 r/w Section 34 of the Indian Penal Code. 3. The prosecution case in brief is as follows:- On 27.01.2021 at about 9.10 p.m., the accused due to previous enmity towards Hamsa @ Bapputty and Mohammad Sameer, assaulted and manhandled them by beating with sticks. It is B.A.No.3319 & 3635 of 2021 ..5.. further alleged that the second accused stabbed Mohammad Sameer using a knife causing fatal injury and while undergoing treatment he succumbed to the injuries. Hence, it is alleged that the accused committed the offence. The petitioners were arrested and produced before the Jurisdictional Court on 29.01.2021. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. The counsel for the petitioners submitted that the petitioners are in custody from 29.01.2021 onwards. The investigation of the case is over and final report filed. The counsel submitted that the petitioners are ready to abide by any conditions, if this Court grant them bail. One of the accused is released on bail. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the petitioners committed serious offence and if the petitioners are released on bail, there will be law and order problem in the locality. Heard the learned counsel for the victim also. He also seriously opposed the Bail Application. He argued that the offence is heinous. He relied on the judgment of the Supreme Court in **Prasanthkumar** B.A.No.3319 & 3635 of 2021 ..6.. ## **Sarkar v. Ashish Chattergi [2010(14) SCC 496].** 5. Admittedly, the petitioners are in custody from 29.01.2021 onwards. Now the petitioners are in custody for more than 90 days. It is true that allegation against the petitioners is very serious. The Prosecution submitted that CCTV footage is also available to show the specific overt act of the petitioners. One of the accused is already granted bail by this Court. Considering the facts and circumstances, I think this bail application can be allowed on stringent conditions. The apprehension of the prosecution that there will be law and order problem in the locality, if the petitioners are released on bail is also to be considered. There can be a direction to the petitioners not to enter jurisdictional limit of Melatoor Police Station till main witnesses in this case are examined. 6. Moreover, the 2[nd] wave of COVID-19 is spreading in the country and the citizens are facing serious difficulties. In the state of Kerala, the 2[nd] wave of the pandemic is creating lot of problems and even the day-to-day life of the citizens are affected. Everyday, about 25,000 people are tested positive B.A.No.3319 & 3635 of 2021 ..7.. with COVID-19. In such circumstances, this Court has to consider this fact also while considering bail applications. The life is more important than anything. Therefore, I am considering this bail application based on the above pandemic situation. 7. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. These happened during the 1[st] wave of COVID-19 season. 8. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870),** after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of B.A.No.3319 & 3635 of 2021 ..8.. bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 9. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. The petitioners shall be released - on bail on executing a bond for Rs.50,000/ (Rupees Fifty Thousand only) each with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court. 2. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise 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 B.A.No.3319 & 3635 of 2021 ..9.. police officer. 3. The petitioners shall not leave India without permission of the jurisdictional Court. 4. The petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. 5. The petitioners shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic. 6. The petitioners shall not enter the jurisdictional limit of Melattur Police Station till the main eye-witnesses in this case are examined during the trial. The petitioners can enter the jurisdictional limit, only for the purpose of appearing B.A.No.3319 & 3635 of 2021 ..10.. before Jurisdictional Court and before the Investigating Officer. 7. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** kkj