Shan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 13[TH] DAY OF JUNE 2024 / 23RD JYAISHTA, 1946 BAIL APPL. NO. 4672 OF 2024** **CRIME NO.1461/2023 OF Ochira Police Station, Kollam PETITIONER/S:** **SHAN AGED 23 YEARS AGED 23, S/O JAFAR, KUNNUTHARAYIL HOUSE, CLAPANA VILLAGE, KARUNAGAPPALLY TALUK AND RESIDENCE AT KUNNUTHARAYIL HOUSE, KAPPIL-MEKKU-MURI, KRISHNAPURAM VILLAGE, ALAPPUZHA DISTRICT, PIN - 690533** **BY ADVS. JOSEPH GEORGE P.A.REJIMON NIKITA NAIR C.S. SAJEEV JOHN T. VIVEKJOS PUTHUKULANGARA** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 4672 OF 2024 2 ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused in Crime No.1461/2023 of the Ochira Police Station, Kollam, registered against him, for allegedly committing the offence punishable under Section 6(3) of the Kerala AntiSocial Activities (Prevention) Act, 2007 (in short, 'Act'). The petitioner was arrested on 20.05.2024. 2. The gravamen of the prosecution case is that: by Annexure A2 order, the District Magistrate, Kollam had ordered preventive detention of the accused for a period of six months from the date of order. However, the accused failed to surrender before the Investigating Officer as ordered in Annexure A2 within the stipulated time. Thus, the accused has committed the above offence. 3. Heard; Sri.Joseph George, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted BAIL APPL. NO. 4672 OF 2024 3 that the petitioner is totally innocent of the accusations leveled against him. In fact the petitioner has already undergone the period of detention ordered by the District Magistrate for the period from 23.11.2023 to 23.05.2024. It is just prior to three days before the detention period got over, the petitioner was arrested on 20.05.2024 in the above crime. The offence alleged against the petitioner is purely technical in nature. Therefore, there is no question of any further investigation or recovery to be effected. The petitioner has been in judicial custody for the last nearly seven months, that is six months in connection with detention and now nearly a month. The petitioner's right has been infringed due to the illegal action of the Investigating Officer. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She submitted that it was only because the petitioner did not surrender before the Investigating Officer as directed in Annexure A2 order within one week from 05.07.2023 that the present crime has been BAIL APPL. NO. 4672 OF 2024 4 registered. It is subsequently on 23.11.2023 that the petitioner was arrested and has undergone the period of detention. It is prior to the petitioner's release he has been arrested in the present crime. There is no illegality committed by the Investigating Officer as alleged by the learned counsel for the petitioner. The petitioner is a person with criminal antecedents. He is involved in 11 other crimes. It is on the said basis that the detention order was passed by the District Magistrate. If the petitioner is released on bail, he would be a menace to the society. Therefore, the application may be dismissed. 6. On an evaluation of the materials on record, it can be gathered from Annexure A2 order that, the District Magistrate had ordered the petitioner to be detained under preventive detention for a period of six months from 12.07.2023. It is the prosecution case that the petitioner failed to surrender before the Investigating Officer as ordered in Annexure A2. The petitioner was finally arrested and remanded to judicial custody on 23.11.2023. Indisputably, the petitioner has undergone the detention BAIL APPL. NO. 4672 OF 2024 5 period of six months. However, just prior to the lapse of the detention period, the petitioner was arrested on 20.05.2024 in connection with the present crime for allegedly committing the offence under Section 6(3) of the Act. The fact remains that the petitioner has been in judicial custody in connection with Annexure A2 detention order and the present crime for the last more than seven months. As rightly pointed out by the learned counsel for the petitioner, there is nothing to be investigated in this case because the offence committed by the petitioner can be borne out from the materials on record. Therefore, I am of the view that the petitioner's further detention is unnecessary. 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. BAIL APPL. NO. 4672 OF 2024 6 8. In **State of Kerala v. Raneef, [** (2011) 1 SCC 784], the Honourable Supreme Court has declared 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. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 10. The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in BAIL APPL. NO. 4672 OF 2024 7 judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, and on considering the fact that the petitioner has been in judicial custody for the last nearly seven months and the investigation in the case is complete, I am of the firm view that the petitioner's further detention is unnecessary. 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.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 alternative Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in the crime. He shall BAIL APPL. NO. 4672 OF 2024 8 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; - (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 BAIL APPL. NO. 4672 OF 2024 9 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/- ## **C.S.DIAS,JUDGE** rkc/13.06.24 BAIL APPL. NO. 4672 OF 2024 10 ## **APPENDIX OF BAIL APPL. 4672/2024** ## **PETITIONER ANNEXURES** |**Annexure A-1**|**TRUE PHOTOCOPY OF THE FIRST INFORMATION**| |---|---| ||**REPORT IN CRIME NO:1461/2023 OF OACHIRA**| ||**POLICE STATION**| |**Annexure A-2**|**TRUE**<br>**PHOTOCOPY**<br>**OF**<br>**ORDER**<br>**NO:**| ||**DCKLM/6264/2023-M/16**<br>**DATED**<br>**05-07-2023**| ||**ISSUED BY THE DISTRICT MAGISTRATE KOLLAM**| |**Annexure A-3**|**TRUE COPY OF ORDER DATED 28-05-2024 IN**| ||**CRIME NO: 1461/2023 OF OACHIRA POLICE**| ||**STATION PASSED BY THE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT KARUNAGAPALLY**|