Shafir v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 BAIL APPL. NO. 4469 OF 2024 CRIME NO.320/2024 OF VADAKKEKAD POLICE STATION, THRISSUR AGAINST THE ORDER DATED 22.05.2024 IN CMP NO.2870 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMKULAM ``` ## **`PETITIONER/ACCUSED 4:`** ``` SHAFIR AGED 33 YEARS S/O HAMSAKKUTTY, KARAPPAMVEETTIL HOUSE, THEKKANCHERY DESOM, MANATHALA VILLAGE CHAVAKKAD THRISSUR, PIN - 680506 ``` ``` BY ADVS. V.V.JOY ARJUN S. HEMANTH H. AJAIY BASKAR ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SRI CS HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.4469 of 2024** ``` 2 ``` **Dated this the 4[th] day of June, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the fourth accused in Crime No.320/2024 of the Vadakkekkad Police Station, Thrissur, registered against the accused (5 in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324 and 308 r/w Section 149 of the Indian Penal Code. The petitioner was arrested on 19.05.2024. 2. The crux of the prosecution case is that; on 13.04.2024, at around 22.00 hours, the accused, in furtherance of their common intention, had formed themselves into an unlawful assembly and wrongfully restrained the defacto complainant. Then, the fifth accused grabbed the defacto complainant from behind, ``` 3 ``` ## **B.A. No.4469 of 2024** the second accused fisted him on his face, the fourth accused pushed him on the ground, and the third accused hit him. It is only because he warded off the attack, he did not lose his life. Thus, the accused have committed the above offences. 3. Heard; Sri. V.V. Joy., the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik. the learned 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 would establish that the offence under Section 308 will not be attracted. The Investigating Officer has deliberately incorporated the said offence to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody since 19.05.2024, the investigation in **B.A. No.4469 of 2024** ``` 4 ``` the case is practically complete, and recovery has been effected. Moreover, by Annexure A4 order, the accused 3 and 5 have been enlarged on bail by this Court on 07.05.2024. The petitioner seeks parity with the said accused. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. He submitted that the investigation in the case is in progress. He also stated that if the petitioner is released on bail, there is every likelihood of him tampering with evidence and intimidating the witnesses. Furthermore, the accused 1 and 2 are still at large. Hence, the application may be dismissed. 6. On an evaluation of the materials on record, it can be deciphered that the specific overt act alleged against the petitioner is that, he pushed the defacto complainant on the ground, and then the third accused ``` 5 ``` ## **B.A. No.4469 of 2024** has attempted to inflict a fatal injury on the defacto complainant. The fact remains that the petitioner has been in judicial custody since 19.05.2024, the investigation in the case, so far as the petitioner is concerned, is practically complete, the recovery has been effected, and further by Annexure A4 order, this Court has enlarged the accused 3 and 5 on bail. 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. The principle that bail is the rule and jail is an exception, is on the touch stone of Article 21 of the ``` 6 ``` ## **B.A. No.4469 of 2024** 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 on considering the fact that the petitioner has been in judicial custody since 19.05.2024, that this Court has enlarged the accused 3 and 5 on bail as per Annexure A4 order, that the investigation in the case, so far as the petitioner is concerned, is practically complete, and that the recovery has been effected, I am of the view that the petitioner’s further detention is not necessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a ``` 7 ``` ## **B.A. No.4469 of 2024** 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 petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also 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; ``` 8 ``` ## **B.A. No.4469 of 2024** (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) 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 moved and entertained by the court ``` 9 ``` ## **B.A. No.4469 of 2024** below. (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/-** mtk/04.06.24 **C.S.DIAS, JUDGE**