Rashid @ Rambo and Nishad @ Nizamudheen v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 13[TH] DAY OF JUNE 2024 / 23RD JYAISHTA, 1946 BAIL APPL.NO.4694 OF 2024 ``` ``` CRIME NO.821/2023 OF Vadakkekad Police Station, Thrissur ``` ``` ----------------- ``` ## **`PETITIONERS/ACCUSED Nos.5 AND 6 :-`** ``` 1RASHID @ RAMBO, AGED 29 YEARS S/O. SADDIQUE, KALLAMVALAPPIL HOUSE, KAMMILAPPALIL DESOM, ADOTICHIRA, VELIYAMKODE VILLAGE, MALAPPURAM, PIN - 695 512 ``` - **`2 NISHAD @ NIZAMUDHEEN, AGED 33 YEARS S/O. SHAHUL HAMEED, THANNITHURAKKAL HOUSE, SCHOOLPADI DESOM, VELIYAMKODE VILLAGE, MALAPPURAM, PIN - 695 512`** ``` BY ADV E.C.AHAMED FAZIL ``` ## **`RESPONDENTS/STATE-COMPLAINANT :-`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 THE STATION HOUSE OFFICER, VADAKKEKAD VADAKKEKAD POLICE STATION, THRISSUR DISTRICT, PIN - 679 562`** ``` SMT.SEETHA S., SR.PP ``` ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ``` 13.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.4694 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R Dated this the 13th day of June, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 5 and 6 in Crime No.821/2023 of the Vadakkekad Police Station, Thrissur, which is registered against the accused (10 in number), for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324, 326, 294(b), 506(ii), 307, 212, 120B and 149 of the Indian Penal Code. The petitioners were arrested on 24.03.2024. 2. The essence of the prosecution case is that; on 17.08.2023, the accused, in prosecution of their common intention, formed themselves into an unlawful assembly to commit the murder of the de facto complainant and his friend. Accordingly, they pelted stones on the de facto complainant and his friend and inflicted injuries on the friend of the de facto complainant with a sword. Thus, the accused have committed the above offences. ``` BAIL APPL.NO.4694 OF 2024 ``` ``` -: 3 :- ``` 3. Heard; Sri.Ahamed Fazile C., the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Public Prosecutor appearing for the respondents. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of the FIR would substantiate that the offences under Sections 326 and 307 cannot be attributed against the petitioners. The Investigating Officer has deliberately incorporated the said offences to deny bail to the petitioners. In any given case, the petitioners have been in judicial custody for the last 79 days, the investigation in the case is complete and recovery has been effected. Therefore, the petitioners may be enlarged on bail. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioners are released on bail, there is every likelihood of them intimidating the witnesses and tampering with the ``` BAIL APPL.NO.4694 OF 2024 ``` ``` -: 4 :- ``` evidence. Moreover, the second petitioner/6th accused is a person with criminal antecedents since he is involved in three other crimes. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioners is that; they in prosecution of their common intention had formed themselves into an unlawful assembly and caused grievous injury to the de facto complainant and his friend Muhammad Fayis. 7. On an evaluation of the materials on record, it can be seen that the specific overt act is only alleged against the first accused. The fact remains that the petitioners have been in judicial custody for the last 79 days, the investigation in the case is complete and recovery has been effected. 8. 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. ``` BAIL APPL.NO.4694 OF 2024 ``` ``` -: 5 :- ``` 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 the 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. The principle that bail is the rule and jail is an exception is the touch stone of Article 21 of the Constitution of India. The right to bail cannot be denied merely due to the sentiments of the society. 11. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that the ``` BAIL APPL.NO.4694 OF 2024 ``` ``` -: 6 :- ``` petitioners have been in judicial custody for the last 79 days, 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, but subject to conditions. 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 on - Investigating Officer 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; ``` BAIL APPL.NO.4694 OF 2024 ``` ``` -: 7 :- ``` - (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 have no they - passports, they shall file affidavits 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 filed and entertained before 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** Jvt/13.6.2024 ``` BAIL APPL.NO.4694 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL. 4694/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure 1TRUE COPY OF COMMON ORDER DATED 02.05.2024 IN CRL.M.C. NO. 578 OF 2024 PASSED BY FOURTH ADDITIONAL SESSIONS JUDGE, THRISSUR ```