Sajad v. State of Kerala (Bail Application No. 847 of 2024)

B.A No. 847 of 2024 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 847 OF 2024 CRIME NO.1302/2023 OF Town West Police Station, Thrissur`** ## **`PETITIONER/S:`** ``` SAJAD, AGED 21 YEARS S/O. SABU, VATTAVILA HOUSE, POOTHOLE, THRISSUR DISTRICT, PIN - 680001 ``` ``` BY ADV VISHNUPRASAD NAIR ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` ADGP SRI GRASHIOUS KURIAKOSE ,SR PP SRI C K SURESH ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No. 847 of 2024 2 **Dated this the 20[th] Day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, by the 3[rd] accused in Crime No.1302/2023 of the Thrissur Town West Police Station, Thrissur, registered against the accused (7 in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 323, 324, 307 and 302 r/w Section 149 of the Indian Penal Code. The petitioner has been in judicial custody since 08.11.2023. 2. The crux of the prosecution case is that; on 06.11.2023 at about 23.00 hours, the accused 1 to 6, in prosecution of their common intention, formed an unlawful assembly at Poothole Railway Colony and committed the murder of one Sreerag (deceased) by stabbing him with a knife. It is further alleged that the de facto complainant and one Sreeneg, who is the B.A No. 847 of 2024 3 brother of the deceased, made an attempt to rescue the deceased from the attack of the accused; but they were attacked with deadly weapons. When the onlookers attempted to take the deceased to the hospital, the other accused restrained them from doing the same. Due to the injuries sustained by the deceased, he lost his life. Thus, the accused have committed the above offences. 3. Heard; Sri. Vishnuprasad Nair, the learned counsel appearing for the petitioner and Sri.C.K. Suresh, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of Annexure A1 FIR and Annexure A2 remand report would substantiate that there is no specific overt act alleged against the petitioner with regard to the murder of the deceased, except the fact that the petitioner assaulted two of the witnesses, namely Ajmal and Jiyas, who were present at the scene B.A No. 847 of 2024 4 of occurrence. At any rate, the offence under Section 302 cannot be attributed against the petitioner. The petitioner has been in judicial custody since 08.11.2023. The investigation in the case is complete, recovery has been effected and the final report has been laid. The case is pending committal proceedings. The petitioner’s further detention is not necessary. The petitioner is willing to cooperate with the Investigating Officer and also abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor vehemently opposed the application. He contended that the it was the petitioner who assaulted the witnesses. The petitioner, along with the other accused, in prosecution of their common intention, committed the murder of the deceased. The petitioner has criminal antecedents. He is involved in three crimes for committing two bailable offences and one non-bailable offence. If the petitioner is B.A No. 847 of 2024 5 released on bail, there is every likelihood of him tampering with the evidence and influencing the witnesses. Hence, the application may be dismissed. Nonetheless, the learned Public Prosecutor conceded to the fact that the investigation in the case is complete and the final report has been laid. 6. The prosecution allegation against the petitioner is that he assaulted the witnesses who were presented at the scene of occurrence, named Ajmal and Jiyas, with his hands. Indisputably, it was the first accused who stabbed and inflicted the fatal injury on the deceased. Prima facie, there is no specific overt act alleged against the petitioner that he caused any injury to the deceased. The petitioner has been in judicial custody since 08.11.2023. The investigation in the case is complete, recovery has been effected and the final report has been laid. 7. In **Sanjay Chandra v. CBI** , [2012 1 SCC 40], the Honourable Supreme Court has categorically held that B.A No. 847 of 2024 6 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. 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. 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 B.A No. 847 of 2024 7 infringement of their right to life guaranteed under Article 21 of the Constitution. 10. In **Manish Sisodia v. Central Bureau of Investigation** [2023 SCC OnLine SC 1393] the Hon’ble Supreme Court held thus: “29. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to B.A No. 847 of 2024 8 exercise the power to grant bail. This would be truer where the trial would take years”. 11. The petitioner had moved to the Court of Session by filing Crl.M.C.No.1912/2023. By Annexure A4 order, the learned Sessions Judge dismissed the application principally on the ground that the investigation in the case was not complete and recovery was to be effected. Admittedly, the investigation is complete, and the final report has been laid. 12. On an anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, that the law referred to in the aforesaid decisions, and on taking into account the fact that the petitioner has been in judicial custody since 08.11.2023, that the investigation in the case is complete, that the recovery has been effected, that the final report has been laid, and that the case is pending in committal proceedings and this Court has enlarged the fourth accused on bail as per the order in B.A.No.558/2024, I B.A No. 847 of 2024 9 am of the definite view that the petitioner’s further detention is not necessary. Hence, I am inclined to allow the 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.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like sum, to the satisfaction of the Trial Court, which shall be subject to the following conditions: (i) The petitioner shall 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; B.A No. 847 of 2024 10 (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) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Thrissur, without the previous permission of the court below. (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 below. B.A No. 847 of 2024 11 (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].** Sd/- **C.S.DIAS, JUDGE** mtk/20.02.24