Shamees v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 BAIL APPL. NO. 2581 OF 2024 ``` ``` CRIME NO.470/2024 OF Chavara Police Station, Kollam ``` ``` PETITIONER/S: ``` ``` SHAMEES AGED 32 YEARS S/O SHAMSUDEEN, 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 ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2THE STATION HOUSE OFFICER CHAVARA POLICE STATION, CHAVARA P.O, KOLLAM DISTRICT., PIN - 691583 ``` ## **`OTHER PRESENT:`** ## **`PP Smt Shynimol V.O`** ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ``` 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.2581 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.2581 of 2024** ## **-----------------------------------** ## **Dated this the 12[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 first 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 3 BA No.2581 of 2024 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.Shynimol.V.O, 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 In any given case, the petitioner has been in judicial custody since 11.03.2024, the investigation in the case is practically complete, and recovery has been effected. The second accused has been released on bail by this Court as per order in BA No.2512/2024. 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 4 BA No.2581 of 2024 substantiate the nature of injuries suffered by the defacto complainant. She submitted that there is a specific overt act alleged against the petitioner. She did not dispute the fact that the second accused has been enlarged on bail. She prayed that the application may be dismissed. 6. 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. 7. 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. 5 BA No.2581 of 2024 8. 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. 9. 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 second accused has been enlarged on bail, 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 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 6 BA No.2581 of 2024 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 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; 7 BA No.2581 of 2024 (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 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 8 BA No.2581 of 2024 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/-** sks/12.04.24 **C.S.DIAS, JUDGE**