Ramsal Nassar & Mahin Rasheed v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 BAIL APPL. NO. 3872 OF 2024 ``` ``` CRIME NO.182/2024 OF IDUKKI POLICE STATION, IDUKKI ``` ## **`PETITIONER/ACCUSED NOS 1 AND 2S:`** - **`1 RAMSAL NASSAR, AGED 30 YEARS S/O.NASSAR, PUTHIYAKUNNEL, UDUMBANNOOR P.O.,EDAMARUKKU, IDUKKI, PIN - 685595`** - **`2 MAHIN RASHEED, AGED 27 YEARS S/O.RASHEED, KALAPURAYIL HOUSE, UDUMBANNOOR P.O.,UDUMBANNOOR, IDUKKI -, PIN - 685595`** ``` BY ADV R.KISHORE (KALLUMTHAZHAM) ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ., PIN - 682031`** - **`2 STATION HOUSE OFFICER, KARIMANNOOR POLICE STATION.IDUKKI PINCODE, PIN - 685581`** - **`3 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** ## **`OTHER PRESENT:`** ## **`SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.3872 of 2024** ``` 2 ``` ## **Dated this the 27[th ] day of May, 2024** ## **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.182/2024 of the Karimannoor Police Station, Idukki, registered against the accused for allegedly committing the offences punishable under Sections 294(b), 447, 323, 324, 326, 341, 354 and 354A(1) (iv) r/w Section 34 of the Indian Penal Code. The petitioners were arrested on 27.03.2024. 2. The gist of the prosecution case is that; on 24.03.2024, at around 18.30 hours, the accused, in furtherance of their common intention, entered into the premises of the de facto complainant and abused him with obscene words. Thereafter, they hit him with a wooden stick. Subsequently, they also trespassed into **B.A. No.3872 of 2024** ``` 3 ``` the courtyard of the house of the de facto complainant and the second accused caught hold of the wife of the de facto complainant and pushed her down on the ground. Again, the accused hit the de facto complainant with a wooden stick and caused a fracture to his left arm. Thus, the accused have committed the above offences. 3. Heard; Sri.R.Kishore, learned counsel appearing for the petitioners and Smt.Seetha S. the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The offence under Section 326 of the IPC will not be attracted. In any given case, the petitioners have been in judicial custody for the last 60 days, the investigation in the case is complete and recovery has been effected. Therefore, **B.A. No.3872 of 2024** ``` 4 ``` the petitioners may be enlarged on bail. 5. The learned Public Prosecutor opposed the application. She submitted that investigation in the case is in progress. She stated that if the petitioners are released on bail, they may tamper with the evidence. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioners is that, they trespassed into the property of the de facto complainant and assaulted him and his wife. The de facto complainant suffered grievous injuries. The fact remains that the petitioners have been in judicial custody for the last 60 days, the investigation in the case is practically complete and recovery has been effected. Therefore, I am of the view that the petitioners’ further detention is unnecessary. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the Honourable Supreme Court has categorically held ``` 5 ``` ## **B.A. No.3872 of 2024** 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. 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 merely due to the sentiments of the society. 9. 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 petitioners have been in judicial custody for the last 60 days, the investigation in the case is complete ``` 6 ``` ## **B.A. No.3872 of 2024** 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, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each 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 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 ``` 7 ``` ## **B.A. No.3872 of 2024** 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; (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 ``` 8 ``` ## **B.A. No.3872 of 2024** 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/-** rmm/27/5/2024 **C.S.DIAS, JUDGE**