Mujeeb Rahman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946** **BAIL APPL. NO. 4199 OF 2024** **CRIME NO.486/2008 OF KADAKKAL POLICE STATION, KOLLAM AGAINST THE ORDER/JUDGMENT DATED 29.04.2024 IN CRMC NO.759 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOLLAM / IV ADDL.M.A.C.T.** **PETITIONER/ACCUSED:** **MUJEEB RAHMAN, AGED 46 YEARS S/O RAHMAN, ENTHIVILA VEEDU, KOLLIYOOR.P.O, KATTAKKADA, THIRUVANANTHAPURAM, PIN - 695572** **BY ADV M.R.SARIN** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **B.A. No.4199 of 2024** **2** ## **Dated this the 12[th ] day of June, 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.486/2008 of the Kadakkal Police Station, Kollam, registered against the accused (2 in number) for allegedly committing the offence punishable under Section 376 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 20.3.2024. 2. The gist of the prosecution case is that; the first accused is working as Mussaliyar of a mosque at a place named Challimukku. The first accused, in furtherance of his common intention with the second accused (the mother in law of the victim), made the victim believe that the first accused knew black magic **3** ## **B.A. No.4199 of 2024** and that there was a hidden treasure in their house, in March, 2008, took the victim along with the second accused to a mosque and committed rape on the victim on several occasions. Accordingly, the accused have committed the above offences. 3. Heard; Sri.M.R.Sarin, the learned counsel appearing for the petitioner and Sri.C.S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner is married and lives with his family in Kollam. The very fact that the alleged incident took place in March, 2008 and that the petitioner was arrested only in March 2024 shows the falsity of the crime. The petitioner has been in judicial custody for the last three months, the **4** ## **B.A. No.4199 of 2024** investigation in the case is complete and the final report has been filed as early as on 21.4.2011. Therefore, the petitioner's further detention is unnecessary. The petitioner is a person without any criminal antecedent. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. He submitted that immediately after the incident, the petitioner and the second accused absconded from the locality. Despite, valiant efforts made by the Investigating Officer, the first accused was traced out only recently and then he was arrested, and was remanded to judicial custody. The second accused is still at large. It was in the above circumstances that the Investigating Officer laid an absconding charge sheet before the jurisdictional court on 21.4.2011. Even though the petitioner filed an application for bail before the court of Session, Kollam, the same was dismissed by **5** ## **B.A. No.4199 of 2024** Annexure A4 order, on prima facie finding the petitioner's complicity in the crime. If the petitioner is enlarged on bail, there is likelihood of him committing similar offences. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, he, in furtherance of his common intention with the second accused, had induced the victim and taken her to a mosque in March, 2008 and repeatedly committed rape on her. The alleged incident is of the year 2008. The Investigating Officer has already laid the absconding final report on 21.4.2011 and the petitioner has been in judicial custody for the last three months. Therefore, all that remains in the crime is that the trial is to be completed. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the Honourable Supreme Court has categorically held that **6** ## **B.A. No.4199 of 2024** 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 the 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. The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied **B.A. No.4199 of 2024** **7** merely due to the sentiments of the society. 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially considering the fact that the petitioner has been in judicial custody for the last three months, the investigation in the case is complete and the final report has been laid, and that the alleged crime had occurred in March 2008, I am of the definite 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 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: **8** ## **B.A. No.4199 of 2024** (i) The petitioner shall appear before the Investigating Officer on every alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in crime No.486/2008. 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 the victim, witnesses or 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 **9** ## **B.A. No.4199 of 2024** 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 Session, Kollam, without the previous permission of the court below. (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. (vii) As the crime is of the year 2008, the **10** ## **B.A. No.4199 of 2024** jurisdictional court shall take expeditious steps to complete the trial in the above crime, in accordance with law. **SD/-** rmm/12/6/2024 **C.S.DIAS, JUDGE**