Nasim Shah v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2221 OF 2024 ``` ``` CRIME NO.164/2024 OF KADAKKAVOOR POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER DATED IN CMP NO.1474 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VARKALA ``` ## **`PETITIONER/SECOND ACCUSED:`** ``` NASIM SHAH AGED 27 YEARS ``` ``` S/O NIZAR, CHAKKAVIAL VEEDU, NEAR PADINJARE PALLI, VAKKOM, THIRUVANANTHAPURAM, PIN - 695306 ``` ``` BY ADV LIJU. M.P ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY PP SMT SHYNIMOL V O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2221 of 2024** ``` 2 ``` **Dated this the 25[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 second accused in Crime No.164/2024 of the Kadakkavoor Police Station, Thiruvananthapuram, registered against the accused (seven in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 294(b), 323, 324, 365 & 308 r/w.S.149 of the Indian Penal Code,1860 ('IPC', in short). The petitioner was arrested on 28.02.2024. 2. The gist of the prosecution case is that: on 22.02.2024 at around 20.45 hours, the accused, in furtherance of their common intention, had wrongfully restrained the informant and his friend and the accused hit on the informant's head with a knuckleduster, and they forcefully took away his friend in an autorickshaw, **B.A. No.2221 of 2024** ``` 3 ``` and manhandled him and caused grievous injuries to him. Thus, the accused have committed the above offences. 3. Heard; Sri.Liju. M.P, learned counsel appearing for the petitioner and Smt. Shynimol. V.O. the learned Senior Public Prosecutor appearing for the respondent. 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 offences under Sections 365 and 308 have been deliberately incorporated to deny bail to the petitioner. The said offences will not be attracted to the facts of the case. In any given case, the petitioner has been in judicial custody since 28.02.2024, the investigation in the case is complete, and the recovery has been effected. By the order in B.A.No1843/2024, this Court has enlarged the accused 4 and 8 on bail on 20.03.2024. The petitioner herein is at par with the said accused. Therefore, the petitioner's further detention is **B.A. No.2221 of 2024** ``` 4 ``` unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation in 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-CumWound Certificate, to substantiate the injuries sustained by the defacto complainant. Moreover, the petitioner is also involved in another crime of similar nature. Hence, the application may be dismissed. 6. The prosecution allegation against the accused is that they had, in prosecution of their common intention, wrongfully restrained the informant and his friend and assaulted them and, thereafter, they abducted the friend of the informant and caused injuries to him. 7. Indisputably, the petitioner was arrested on 28.02.2024. The investigation in the case is practically complete and recovery has been effected. ``` 5 ``` ## **B.A. No.2221 of 2024** 8. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the2024:KER:11608 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 punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 9. 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. 10. Subsequently, in **State of Kerala v. Raneef** , [(2011) 1 SCC 784], the Honourable Supreme Court has ``` 6 ``` ## **B.A. No.2221 of 2024** 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. 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, and especially taking into account the fact that the petitioner has been in judicial custody since 28.02.2024, that the investigation in the case, insofar as the petitioner is concerned, is practically complete and recovery has been effected, I am of the firm 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.50,000/- (Rupees fifty thousand only) with ``` 7 ``` ## **B.A. No.2221 of 2024** 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 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; ``` 8 ``` ## **B.A. No.2221 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) The petitioner shall furnish his present address and permanent address, and his mobile phone number to the court below and the Investigating Officer; (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 ``` 9 ``` ## **B.A. No.2221 of 2024** below. (viii) 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 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].** mtk/25.03.24 **C.S.DIAS, JUDGE** ``` 10 ``` ## **B.A. No.2221 of 2024** ## **`APPENDIX OF BAIL APPL. 2221/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE 1TRUE COPY OF THE FIR IN CRIME NO.164/2024 OFKADAKKAVOORPOLICESTATION, THIRUVANANTHAPURAM ``` ``` ANNEXURE 2ORIGINAL ORDER DATED 05.03.24 PASSED IN CMP NO. 1475/24 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, VARKALA ```