Noufal Noushad v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 BAIL APPL. NO. 1325 OF 2024 ``` ``` CRIME NO.113/2024 OF KALAMASSERY POLICE STATION, ERNAKULAM ``` ## **`PETITIONER/ACCUSED 1:`** ``` NOUFAL NOUSHAD AGED 25 YEARS THINDIKKAL HOUSE, KALAMASSERY, ERNKAULAM, PIN - 682056 ``` ``` BY ADV ANEESH K.R ``` ## **`RESPONDENT/STATE:`** ``` 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 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`B.A. NO.1325 OF 2024 2`** ## **Dated this the 23[rd] day of February, 2024 ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.113/2024 of the Kalamassery Police Station, Ernakulam, registered against the accused (two in number), for allegedly committing the offences punishable under Sections 341, 323, 324, 326, 294(b) and 394 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 16.01.2024. 2. The prosecution case is that: on 14.01.2024, at about 21.40 hours, the accused, in furtherance of their common intention, attacked the defacto complainant with an iron weapon and the first accused hit him on his face and caused a nasal bone fracture. The other accused also kicked the defacto complainant. Thereafter, the second ## **`B.A. NO.1325 OF 2024 3`** accused robbed money from his purse and the defacto complainant sustained a loss of Rs.15,330/-. Thus, the accused have committed the above offences. 3. Heard; Sri. Aneesh. K.R, the learned counsel appearing for the petitioner and Smt. Neema. T.V, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. A reading of the FIR would substantiate that the offences alleged against the petitioner would not be attracted. The police have deliberately incorporated Sections 326 and 394 of the IPC to deny bail to the petitioner. The petitioner has been in judicial custody since 16.01.2024, which is 39 days. The investigation in the case is complete, and recovery has been effected. The petitioner’s further detention is not necessary. Therefore, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the ## **`B.A. NO.1325 OF 2024 4`** application. She contended that the investigation is in progress. She made available the Accident Register-Cum- Wound certificate of the defacto complainant to substantiate the injuries sustained by him. Nonetheless, she conceded to the fact that the petitioner has been in judicial custody for the last 39 days and he has no criminal antecedents. 6. 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. 7. 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 ## **`B.A. NO.1325 OF 2024 5`** 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. 8. 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. 9. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, particularly after analysing the Accident Register-Cum-Wound-Certificate of the defacto complainant, which shows that the defacto complainant had suffered only a swelling on his nose and abrasion on his nasal bridge, that the petitioner has been in judicial custody for the last 39 days, that the ## **`B.A. NO.1325 OF 2024 6`** investigation in the case is complete, that the recovery has been effected, and that the petitioner does not have criminal antecedents, I am of the definite view that the petitioner’s continued detention is unnecessary. 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 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 ## **`B.A. NO.1325 OF 2024 7`** 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 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 ## **`B.A. NO.1325 OF 2024 8`** 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].** **Sd/-** **C.S.DIAS, JUDGE** mtk/23.02.241