Shafeeq v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1511 OF 2024 ``` ``` CRIME NO.29/2024 OF CHALISSERY POLICE STATION, PALAKKAD ``` ## **`PETITIONER/FIRST ACCUSED:`** ``` SHAFEEK AGED 32 YEARS S/O. MUHAMMED KUTTY, KOTTARATHIL HOUSE, KOOTTANAD, THEKKE VAVANNUR P.O, PATTAMBI, PALAKKAD,PIN - 679533 ``` ``` BY ADV K.S.SREEREKHA ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY PP SMT SHYNIMOLE V O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A. No.1511 of 2024 2 **Dated this the 29[th] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.29/2024 of the Chalissery Police Station, Palakkad, registered against the accused (7 in number) for allegedly committing the offences under Sections 143, 147, 324 and 308 r/w Section 149 of the Indian Penal Code. The petitioner was arrested on 15.01.2024. 2. The crux of the prosecution case, is that; on 14.01.2024 at about 21.30 hours, the accused, in prosecution of their common intention, formed themselves into an unlawful assembly, and the first accused, with a sword, cut on the head of the first informant, and he suffered serious injuries. When a friend B.A. No.1511 of 2024 3 of the first informant attempted to intervene, the accused also inflicted cut injuries on both his hands. Thus, the accused have committed the above offences. 3. Heard Sri.K.S. Sreerekha, the learned counsel appearing for the petitioner and Smt.Shynimol. V.O, the learned Senior Public Prosecutor appearing for the respondents. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime. A reading of Annexure A1 FIR would substantiate that the offence under Section 308 will not be attracted. The said offence has been incorporated for the sole purpose of denying bail to the petitioner. At any rate, the petitioner has been in judicial custody since 15.01.2024. The investigation in the case is complete, and the recovery has been effected. Therefore, the B.A. No.1511 of 2024 4 petitioner’s further detention is not necessary. Hence,the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that the investigation in the case is in progress. She made available the Accident Register-Cum-Wound Certificate of the injured to substantiate her assertions. Nonetheless, she conceded to the fact that the petitioner has been in judicial custody since 15.01.2024, the recovery has been effected, and the investigation is at its fag end. 6. The crux of the prosecution allegation is that the accused, in prosecution of their common intention, had formed an unlawful assembly and assaulted the first informant. On an appreciation of the Accident RegisterCum-Wound Certificate of the injured dated 14.01.2024, I find that the injured had suffered only multiple lacerations and aberrations on different parts of his body. Therefore, B.A. No.1511 of 2024 5 prima facie, I find that the offence under Section 308 may not be attracted. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the2024:KER:11608 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. 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 B.A. No.1511 of 2024 6 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 infringement of their right to life guaranteed under Article 21 of the Constitution. 10. On a consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and particularly on appreciating the Accident Register-Cum-Wound Certificate of the injured, that the petitioner has been in judicial custody since 15.01.2024, that the recovery has been effected, and that the investigation in the case is practically complete, I am of the definite view that the petitioner’s further detention is not necessary. Hence, I am inclined to allow the bail B.A. No.1511 of 2024 7 ## 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; (iii) The petitioner shall not commit any offence while he is on bail; B.A. No.1511 of 2024 8 (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, Palakkad, 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. (viii) Needless to mention, it would be well within B.A. No.1511 of 2024 9 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/- ``` mtk/29.02.24 **C.S.DIAS, JUDGE** B.A. No.1511 of 2024 10 ## **`APPENDIX OF BAIL APPL. 1511/2024`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE A1THE COPY OF THE FIR IN CRIME NO. 29/2024 OF CHALISSERRY POLICE STATION, PALAKKAD ``` ``` ANNEXURE A2 ``` ``` THE COPY OF ORDER IN CRL.MC NO.986/2024 OF THE HON'BLE SESSIONS COURT, PALAKKAD DATED 19.02.2024 ```