High Court of KeralaSingle JudgeApplication allowed; bail granted to the petiti...

Shiyas B and Basheer M v. State of Kerala

Case / Petition Number:BA No.1618 of 2024

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C. S. Dias
Judgment Date
2024-03-04
Court Decision / Holding
The application is allowed; the petitioners Shiyas B and Basheer M are ordered to be released on bail on a bond of Rs.50,000 each with two solvent sureties of like amount, subject to conditions: (i) petitioners to appear before the Investigating Officer every Saturday 9 a.m. to 11 a.m. for one month or until final report, whichever earlier; (ii) not to induce or threaten witnesses or tamper with evidence; (iii) not to commit any offence while on bail; (iv) surrender passports or file affidavits if none; (v) bail can be canceled for violation of conditions; (vi) applications for modification of bail conditions to be entertained by the court below; (vii) Investigating Officer may continue investigation and effect recoveries as necessary, in line with Sushila Aggarwal v. State (NCT of Delhi) and another.
Final Disposition
Application allowed; bail granted to the petitioners with specified conditions.

Parties to the Case

Appellants / Petitioners

  • Shiyas B
  • Basheer M

Respondents

  • State of Kerala represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • V. A. Johnson (Varikkappallil)

Counsels for Respondents

  • • Sri C. S. Hrithwik (Public Prosecutor)

Case Synopsis & Summary

This is a Kerala High Court bail application (BA No.1618 of 2024) in which petitioners Shiyas B and Basheer M seek bail under Section 439 CrPC in Crime No.105/2024 of Nenmara Police Station, Palakkad, for alleged offences under IPC sections 341, 324 and 308 r/w 34. The prosecution alleges that on 17 February 2024, in furtherance of a common intention, the accused formed an unlawful assembly, the first accused uttered obscene words, restrained the complainant, and caused hurt with a wooden stick, with the second accused joining in; the injuries were alleged to be serious though the wound certificate later shows contusions and a black eye. The petitioners have remained in judicial custody since 18 February 2024, and the investigation is said to be practically complete with recoveries effected. The defence contends that 308 is not attracted and that the injuries are not grievous, arguing that denying bail would be contrary to the presumption of innocence and constitutional protections. The Public Prosecutor contends the injuries are serious. Relying on Supreme Court precedents on the presumption of innocence, bail as a rule, and the need to avoid undue detention (including in cases like State of Kerala v. Raneef and Dataram Singh), the court ultimately allows bail, noting the minor nature of injuries and the completed investigation, with conditions designed to prevent abuse, ensure appearance, and permit continued investigation where necessary.

Provisions of Law Cited

Section 439 of CrPC, 1973Sections 341, 324 and 308 read with Section 34 of IPC

Legal Doctrines & Maxims

  • Presumption of innocence until guilt is established
  • Bail is the rule and detention before conviction is an exception
  • Right to life under Article 21 and protection against undue/delayed detention of undertrial prisoners
  • Investigation and recovery can continue while on bail, as laid down in Sushila Aggarwal v. State (NCT of Delhi) and another

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for petitioners submitted that the petitioners are totally innocent; Annexure-1 FIR indicates Section 308 is not attracted, apparently inserted to deny bail. The de facto complainant sustained only contusions and a black eye; no grievous injuries alleged. Petitioners have been in judicial custody since 18 February 2024 and the investigation is practically complete with recoveries effected; thus, further detention is unnecessary. Relying on the presumption of innocence, the court should ordinarily grant bail. The petitioners argue that bail is the rule and imprisonment is the exception (as per Dataram Singh and Sanjay Chandra), that the right to liberty is guarded by Article 21, and that the injuries and the offences do not justify indefinite detention. They request grant of bail with suitable conditions.

Contentions of Respondents

The State contends that the petitioners caused serious injuries to the de facto complainant; the wound certificate and accident registry indicate significant injuries. The offences under IPC 341, 324 and 308 r/w 34 are severe, and the investigation is at a late stage; bail in such circumstances could hamper the investigation and risk tampering. Citing the seriousness of the injuries, the State argues for denying bail to ensure ongoing investigation and to prevent possible re-offence, while acknowledging that the investigation is near completion.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Sanjay Chandra v. CBI2012 1 SCC 40PositiveAnchors the presumption of innocence and cautions against denying bail solely on prior conduct.
Dataram Singh v. State of U.P.(2018) 3 SCC 22PositiveStates bail is the rule and imprisonment before conviction is the exception; discretion must be exercised judiciously and with compassion.
State of Kerala v. Raneef(2011) 1 SCC 784PositiveUnderscores that prolonged undertrial detention without sufficient cause violates Article 21.
Sushila Aggarwal v. State (NCT of Delhi) and another(2020) (1) KHC 663PositiveCited for principle allowing ongoing investigation and recoveries even while on bail, as laid down by the Supreme Court.

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Extracted Judgment Text

Exact text extracted from official judgment records.

1 BA No.1618 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 BAIL APPL. NO. 1618 OF 2024 ``` ``` CRIME NO.105/2024 OF Nenmara Police Station, Palakkad ``` ## **`PETITIONER/S:`** ``` 1SHIYAS.B AGED 21 YEARS S/O.BASHEER, AALINCHUVATTIL VEE3DU, CHEVAKKULAM, AYILUR POST, CHITTUR, PALAKKAD, PIN - 678510 2BASHEER.M AGED 45 YEARS S/O.MUHAMMAD KHANI, AALINCHUVATTIL VEEDU, CHEVAKKULAM, AYILUR POST, CHITTUR, PALAKKAD, PIN - 678510 BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` OTHER PRESENT: ``` ``` Sr PP Sri C.S Hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1618 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.1618 of 2024** ## **-----------------------------------** ## **Dated this the 4[th] day of March, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.105/2024 of the Nenmara Police Station, Palakkad, registered against the accused, for allegedly committing the offences punishable under Secs 341, 324 and 308 r/w Section 34 of the Indian Penal Code. The petitioners were arrested on 18.2.2024. 2. The essence of the prosecution case is that: On 17.2.2024 at around 20.30 hours, the accused in furtherance of their common intention formed an unlawful assembly and the first accused uttered obscene words against the de facto complainant, restrained him, caught hold of his neck and voluntarily caused hurt to him by beating with a wooden stick. On hearing the sound, the second accused also went 3 BA No.1618 of 2024 to the spot and hit the de facto complainant with a wooden stick. If the de facto complainant had not warded off the attack, it would have resulted in his death. Thus, the accused have committed the above offences. 3. Heard; Sri.V.A Johnson, learned counsel appearing for the petitioners and Sri.C.S Hrithwik., the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of Annexure-1 FIR would substantiate that the offence under Sec.308 will not be attracted. The said offence has been incorporated only to deny bail to the petitioners. The de facto complainant has not sustained grievous injuries as alleged by the prosecution. At any rate, the petitioners have been in judicial custody since 18.2.2024. The investigation in the case is practically complete and recovery has been effected. Therefore, the petitioners’ further detention is not necessary. Hence, the application may be allowed. 4 BA No.1618 of 2024 5. The learned Public Prosecutor opposed the application. He contended that the petitioners have caused serious injuries to the de facto complainant. He made available the accident register cum wound certificate of the injured to substantiate his assertion. Nonetheless, he conceded to the fact that the investigation in the case is practically complete and recovery has been effected. 6. 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 a 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 5 BA No.1618 of 2024 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. 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. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, especially after going through the accident register cum wound certificate of the injured dated 17.2.2024, which shows that the injured had sustained only contusions and a black eye, and taking into account the fact that the petitioners have been in judicial custody since 18.2.2024, that the investigation in the 6 BA No.1618 of 2024 case is practically complete and recovery has been effected, I am of the definite view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioners to be released on bail on them 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 petitioners 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. They shall also appear before the Investigating Officer as and when required; (ii) The petitioners 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 them from disclosing such 7 BA No.1618 of 2024 facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioners shall not commit any offence while they are on bail; (iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits 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 8 BA No.1618 of 2024 any, given by the petitioners even while the petitioners are 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/4.3.2024 **C.S.DIAS, JUDGE**