Rafeeque and Subair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946** ## **BAIL APPL. NO. 2493 OF 2024** **CRIME NO.128/2024 OF Kadavanthra Police Station, Ernakulam** **AGAINST THE ORDER/JUDGMENT DATED 16.03.2024 IN CRMC NO.768 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM PETITIONER/S:** **1 RAFEEQUE AGED 40 YEARS S/O. HAMSA, MANAMMAL HOUSE, KAVINGAL ROAD, AMBALAVATTOM KARA, EDARIKKODE VILLAGE, MALAPPURAM DISTRICT, PIN - 676501** **2 SUBAIR AGED 39 YEARS S/O. MOIDEEN, PONNIYERI HOUSE, ADHARSSERI, KAVAPPURA, PONMUNDAM VILLAGE, TIRUR TALUK, MALAPPRUAM DISTRICT, PIN - 676106** **BY ADVS. BOBBY RAPHEAL.C E.C.POULOSE** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 2493 OF 2024 2 ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.128/2024 of Kadavanthra Police Station, Ernakulam, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 120(B), 323, 324, 342, 506(ii), 395, 364(A) of the Indian Penal Code( in short, 'IPC'). The petitioners were arrested on 09.02.2024. 2. The essence of the prosecution case is that: on 07.02.2024 at around 23.30 hours, the accused 1 to 4, with an intention to commit robbery, abducted the husband of the defacto complainant in the car owned by the 1[st] accused, with the assistance of the 5[th] accused. The accused 1 to 3 assaulted the victim and obtained a sale letter from him. They also demanded and received Rs.80,000/- from him through Google pay and Rs.50,000/- through bank transfer as a ransom. They also demanded the defacto BAIL APPL. NO. 2493 OF 2024 3 complainant to pay further money for his release. Thus, the accused have committed the above offences. 3. Heard; Sri.Bobby Rapheal C., the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. The Investigating Officer has deliberately incorporated Sections 395 and 364A of the IPC to deny bail to the petitioners. The petitioners are law abiding citizens and have no criminal antecedents. In any given case, the petitioners have been in judicial custody since 09.02.2024, the investigation in the case is practically complete and recovery has been effected. Moreover, the 3[rd] accused has already been enlarged on bail by the Court of Session, Ernakulam. Hence, the petitioners may be released on bail. BAIL APPL. NO. 2493 OF 2024 4 5. The learned Public Prosecutor seriously opposed the application. She submits that the investigation in the case is in progress. She also stated that the accusations leveled against the petitioners are serious in nature. If the petitioners are released on bail, there is every likelihood of them committing similar offences. Hence, the application may be dismissed. 6. On an analysis of the prosecution allegation it is seen that the accused 1 to 4 had allegedly abducted the defacto complainant and received money and thereafter demanded more money from the defacto complainant as ransom. The fact remains that the petitioners have been in judicial custody since 09.02.2024, which is nearly two months, the investigation in the case is practically complete and recovery has been effected. More over, it is brought to the notice of this Court that the 3[rd] accused has been enlarged on bail by the Court of Session, Ernakulam. BAIL APPL. NO. 2493 OF 2024 5 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 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 concluding the trial, BAIL APPL. NO. 2493 OF 2024 6 will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, and especially taking into account the fact that the petitioners have been in judicial custody since 09.02.2024, that the investigation in the case is complete and recovery has been effected, I am of the definite 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 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 BAIL APPL. NO. 2493 OF 2024 7 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 passports, 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; v. In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to BAIL APPL. NO. 2493 OF 2024 8 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/03.04.24 BAIL APPL. NO. 2493 OF 2024 9 ## **APPENDIX OF BAIL APPL. 2493/2024** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF THE AGREEMENT DATED 29.10.2018 EXECUTED BY THE HUSBAND OF THE DEFACTO COMPLAINANT AND DE FACTO COMPLAINANT IN FAVOR OF THE PETITIONERS BEFORE THE NOTARY PUBLIC Annexure A2 CERTIFIED COPY OF THE ORDER DATED 16/3/2024 IN CRL. M.C. NO. 768/2024 OF ADDITIONAL SESSIONS JUDGE-VI (IN-CHARGE OF ADDITIONAL SESSIONS JUDGE II), ERNAKULAM**