Shameer v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2512 OF 2024 ``` ``` CRIME NO.470/2024 OF Chavara Police Station, Kollam ``` ``` AGAINST THE ORDER DATED 21.03.2024 IN CMP NO.445 OF 2024 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVARA ``` ## **`PETITIONER/ACCUSED:`** ``` SHAMEER AGED 32 YEARS ``` ``` S/O SHAMSUDHEEN, KAVELLAYIL VEEDU, MENAMPALLY MURI, CHAVARA VILLAGE, (NOW RESIDING AT PUTHUPARAMBIL VEEDU, VATTATHARA MURI, CHAVARA VILLAGE) KARUNAGAPPALLY TALUK, KOLLAM DISTRICT., PIN - 691583 ``` ## **`BY ADV P.V.DILEEP`** ## **`RESPONDENTS/COMPLAINANT:`** ``` 1 STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM., PIN - 682031 ``` ``` 2 THE STATION HOUSE OFFICER CHAVARA POLICE STATION, CHAVARA P.O, KOLLAM DISTRICT., PIN - 691583 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2512 of 2024** ``` 2 ``` ## **Dated this the 4[th] day of April, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.470/2024 of the Chavara Police Station, Kollam, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 294(b), 324, 323, 307 and 506 (ii) r/w Section 34 of the Indian Penal Code and Section 27 of the Arms Act. The petitioner was arrested on 11.03.2024. 2. The essence of the prosecution case is that: on 10.03.2024, at about 10.30 hours, the accused, in furtherance of their common intention and out of their previous animosity with the defacto complainant, uttered obscene words at the defacto complainant, and the first accused inflicted a cut injury on the right arm of the **B.A. No.2512 of 2024** ``` 3 ``` defacto complainant, which resulted in one of his veins getting cut. The second accused assaulted the brother of the defacto complainant with his hands. Thus, the accused have committed the above offences. 3. Heard; Sri.Dileep. P.V., learned counsel appearing for the petitioner and Smt.Seetha. S the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that, the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure A1 FIR would substantiate that the offence under Section 307 will not be attracted against the petitioner because it is the first accused who inflicted grievous injuries on the defacto complainant. The only overt act alleged against the petitioner is that he assaulted the brother of the defacto complainant using his hands. In any given case, the petitioner has been in judicial custody since 11.03.2024, the investigation in ``` 4 ``` ## **B.A. No.2512 of 2024** the case is practically complete, and recovery has been effected. Therefore, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. She made available the Accident RegisterCum-Wound Certificate of the defacto complainant to substantiate the nature of injuries suffered by the defacto complainant. She submitted that the specific overt act alleged against the petitioner is that he assaulted the brother of the defacto complainant with his hands and caused injuries to him. She also stated that the petitioner has been in judicial custody since 11.03.2024, and the recovery has been effected. 6. On an evaluation of the materials placed on record, it can be seen that the specific overt act alleged against the petitioner is that he assaulted the brother of the defacto complainant with his hands and caused injuries to him. Therefore, prima facie, I am of the view **B.A. No.2512 of 2024** ``` 5 ``` that the offence under Section 307 may not be attracted against the petitioner. 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 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. **B.A. No.2512 of 2024** ``` 6 ``` 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. After bestowing my anxious consideration to the facts, the materials placed on record, and the rival submissions made across the Bar, especially on considering the fact that the specific overt act of causing grievous injuries to the defacto complainant is attributed against the first accused and there is no specific overt act alleged against the petitioner with regard to the commission of offence under Section 307 of the IPC, and further that the petitioner has been in judicial custody since 11.03.2024, that the investigation in the case is practically complete and recovery has been effected, I ``` 7 ``` ## **B.A. No.2512 of 2024** am of the definite view that the petitioner’s further detention is unnecessary. 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 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 for a period of one month or till the final report is laid, whichever is earlier. 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 ``` 8 ``` ## **B.A. No.2512 of 2024** 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; (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. **B.A. No.2512 of 2024** ``` 9 ``` (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 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/04.04.24 **C.S.DIAS, JUDGE** **B.A. No.2512 of 2024** ``` 10 ``` ## **`APPENDIX OF BAIL APPL. 2512/2024`** ## **`PETITIONER ANNEXURES`** ``` Annexure-1 ``` ``` THE TRUE COPY OF THE F.I.R IN CRIME NO. 470/2024 OF CHAVARA POLICE STATION IN KOLLAM DISTRICT DATED 10.3.2024. ``` ## **`Annexure-2`** ``` THE TRUE COPY OF THE REMAND APPLICATION DATED 05.03.2024 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST- CLASS MAGISTRATE COURT-I, HARIPPAD. ``` ## **`Annexure-3`** ``` THE TRUE COPY OF THE COMPLAINT DATED 13.03.2024 FILED BY THE MOTHER OF PETITIONER AGAINST DEFACTOCOMPLAINANT AND HIS BROTHER BEFORE THE CITY POLICE COMMISSIONER, KOLLAM. ``` ``` Annexure-4 ``` ``` A CERTIFIED COPY OF THE COMMON ORDER IN C.M.P NO. 445/2024 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVARA ```