Naseem and Nazar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946** **BAIL APPL. NO. 2295 OF 2024** **CRIME NO.159/2024 OF Kadinamkulam Police Station,** **Thiruvananthapuram** ## **PETITIONER/S:** **1 NASEEM, AGED 30 YEARS S/O NASEER, THERUVILTHAIVILAKAM VEEDU ,PERUMATHURA DESOM SARKARA VILLAGE , ATTINGAL,THIRUVANTHAPURAM, PIN - 695303 2 NAZAR, AGED 33 YEARS S/O NASEER , THERUVILTHAIVILAKAM VEEDU PERUMATHURA DESOM ,SARKARA VILLAGE ATTINGAL ,THIRUVANTHAPURAM, PIN - 695303** **BY ADVS. M.R.SARIN PARVATHI KRISHNA SNEHA JOY LEKSHMI S.R P.SANTHOSHKUMAR (KARUMKULAM) SAUMYA.P.S MAHALEKSHMY P.S** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** ## **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 2295 OF 2024 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.159/2024 of the Kadinamkulam Police Station, Thiruvananthapuram, registered against the accused (four in number) for allegedly committing the offences punishable under Secs.341, 294(b), 323, 324, 307 and 427 r/w Sec.34 of the Indian Penal Code (in short, 'IPC'). The petitioners were arrested on 22.02.2024. 2. The essence of the prosecution case is that: on 20.02.2024 at around 22.30 hours, the accused, in furtherance of their common intention and out of their previous animosity towards the defacto complainant and his brother, advised them not to harass the daughter of their step mother. Then, the 1[st] accused uttered obscene words and pushed down the defacto complainant who was talking to the 2[nd] accused. Thereafter, the 3[rd] accused threw chilly powder on the defacto complainant when he attempted to get rid off the 1[st] accused who stabbed on his BAIL APPL. NO. 2295 OF 2024 3 left shoulder. Then, the 4[th] accused also threw chilly powder on the brother of the defacto complainant and pushed him down and stabbed him with a knife. They also damaged the mobile phone of the defacto complainant and caused a loss of Rs.25,000/-. Thus, the accused have committed the above offences. 3. Heard; Sri.M.R.Sarin, the learned counsel appearing for the petitioners and Smt.Neema T.V., the learned Public Prosecutor. 4. The learned counsel for the petitioners very strenuously argued that the petitioners are totally innocent of the accusations leveled against them. The offences under Sections 307 and 427 of the IPC will not be attracted against the petitioners, because the defacto complainant and his brother had trespassed into the house of the accused and committed the above offences. The petitioners are law abiding citizens without any criminal BAIL APPL. NO. 2295 OF 2024 4 antecedents. In any given given case, the petitioners have been in judicial custody since 22.02.2024, which is 45 days, the investigation in the case is complete and recovery has been effected. More over, the accused 3 and 4 have also been enlarged on bail. Therefore, the petitioners' further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report. He has stated that the accused had brutally assaulted and inflicted grievous injuries on the defacto complainant. If the petitioners are released on bail, they would certainly tamper with the evidence and intimidate the witnesses. The learned Public Prosecutor also made available the discharge summary of the defacto complainant and his brother (injured) to substantiate the BAIL APPL. NO. 2295 OF 2024 5 nature of injuries suffered by them. She submitted that the investigation is still in progress. Therefore, the application may be dismissed. 6. On an evaluation of the materials on record, it can be gathered that the incident occurred on 20.02.2024 at the house of the accused. It is alleged that when the defacto complainant and his brother went to the house of the accused, they assaulted them and caused grievous injuries to the injured. The fact remains that the petitioners have been in judicial custody since 22.02.2024, which is now more than 40 days, the investigation in the case is practically complete and recovery has been effected. 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 BAIL APPL. NO. 2295 OF 2024 6 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. 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 BAIL APPL. NO. 2295 OF 2024 7 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, especially taking into consideration the fact that the petitioners have been in judicial custody since 22.02.2024, the investigation in the case is practically complete and recovery has been effected, and further that the petitioners are persons without any criminal antecedents, I am of the 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) with two solvent sureties each for the like sum, to the satisfaction of BAIL APPL. NO. 2295 OF 2024 8 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 till the final report is laid. 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 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 passport, if any, before the court below at the time of execution of the bond. If they have no passport, they shall file an affidavit to the effect before the court below on the date of execution of the bond; BAIL APPL. NO. 2295 OF 2024 9 (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 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 another** [2020 (1) KHC 663]. sd/- **C.S.DIAS, JUDGE** rkc/05.04.24 BAIL APPL. NO. 2295 OF 2024 10 ## **APPENDIX OF BAIL APPL. 2295/2024** ## **PETITIONER ANNEXURES** **Annexure A1 THE TRUE COPY OF ORDER IN CMP NO 1778/2024 BY THE JFCM COURT -1-ATTINGAL DATED 27.2. 2024** **Annexure A2 THE TRUE COPY OF FIR IN CRIME NO.159/2024 OF KADINAMKULAM POLICE STATION Annexure A3 THE TRUE COPY OF RECEIPT ISSUED BY THE KADINAMKULAM POLICE STATION DATED21.02.2024**