Yusuf @ Kunjutti and Abdul Shukkur and Muhammed Shihabudheen @ Shihab v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 BAIL APPL. NO. 4300 OF 2024 ``` ``` CRIME NO.206/2024 OF NATTUKAL POLICE STATION, PALAKKAD ``` ``` AGAINST THE ORDER DATED IN CMP NO.1340 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS , MANNARKAD PETITIONER/ACCUSED 1 TO 3: ``` ``` 1YUSUF @ KUNJUTTI AGED 32 YEARS S/O HYDROSE, PERUNDAPURATH HOUSE, NATTUKAL, MANNARKKAD, PALAKKAD, PIN - 678583 2ABDUL SHUKKUR AGED 32 YEARS S/O MUHAMMED, POTHENGAL HOUSE, KARINGALATHANI, CHETHALLUR, MANNARKKAD, PALAKKAD, PIN - 678583 3MUHAMMED SHIHABUDHEEN @ SHIHAB AGED 33 YEARS S/O MUHAMMEDALI, VALLURKKAVIL HOUSE, THONDUKAPPU, NATTUKAL, MANNARKKAD, PALAKKAD, PIN - 678583 ``` ``` BY ADVS. T.K.SANDEEP SWETHA R. ``` ## **`RESPONDENT/COMPLAINANT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.4300 of 2024** ``` 2 ``` ## **Dated this the 29[th] day of May, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 to 3 in Crime No.206/2024 of the Nattukal Police Station, Palakkad, registered against the accused (five in number and five other identifiable persons) for allegedly committing the offences punishable under Sections 143, 147, 148, 452, 341, 427, 323 and 324 r/w 149 of the Indian Penal Code. The petitioners were arrested on 16.05.2024. 2. The essence of the prosecution case is that; on 13.05.2024, at around 21.45 hours, the accused 1 to 5, along with 5 other identifiable persons, formed themselves into an unlawful assembly, and in furtherance of their common intention, wrongfully restrained the defacto complainant. Then, the first **B.A. No.4300 of 2024** ``` 3 ``` accused using his hands fisted on the eyes of the defacto complainant. Subsequently, the accused one to nine, assaulted the staff of the defacto complainant with iron rods and caused hurt to them. They also damaged the properties of the defacto complainant, causing him a loss of Rs.50,000/- (Rupees Fifty Thousand only). Thus, the accused have committed the above offences. 3. Heard; Sri. T.K. Sandeep., the learned counsel appearing for the petitioners and Smt. 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. The offence under Section 452, which is the only a non-bailable offence, will not be attracted since the place of occurrence was a restaurant, where the petitioners had gone to have their food. The Investigating Officer has deliberately incorporated the said offence to deny bail to the petitioners. In any given case, the petitioners have been **B.A. No.4300 of 2024** ``` 4 ``` in judicial custody since 16.05.2024, the investigation in the case is practically complete, and recovery has been effected. Therefore, the petitioners' further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that the first petitioner is a person with criminal antecedents. If the petitioners are released on bail, there is every likelihood of them interfering with the investigation and tampering with the evidence. Hence, the application may be dismissed. 6. On an evaluation of the materials on record, it can be seen that the prosecution allegation against the accused is that they had gone to a restaurant run by the defacto complainant and ordered food. Due to the non supply of food within a reasonable time, the accused got agitated, and they assaulted the defacto complainant and his employees and caused damage to the property. Thus, the accused have committed the above offences. ``` 5 ``` ## **B.A. No.4300 of 2024** The only non-bailable offence alleged against the accused is under Section 452 of the IPC. Whether the said offence will be attracted or not, that is a matter to be investigated and decided at the time of the trial. Nonetheless, the petitioners have been in judicial custody since 16.05.2024, the investigation in the case is practically complete, and recovery has been effected. 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. In **State of Kerala v. Raneef, [(2011) 1 SCC 784]** , the Honourable Supreme Court has declared that undertrial prisoners detained in jail for indefinite **B.A. No.4300 of 2024** ``` 6 ``` 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. 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 judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 10. On a consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially the fact that the petitioners have been in judicial custody since 16.05.2024, that they have no criminal antecedents, that the investigation in the case is complete, and that the recovery is effected, I hold that the petitioners’ further detention is not necessary. Hence, I am inclined to allow the bail application. ``` 7 ``` ## **B.A. No.4300 of 2024** 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) each 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 till the final report is laid. 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 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.4300 of 2024** (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. ``` 9 ``` ## **B.A. No.4300 of 2024** (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 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].** mtk/29.05.24 **C.S.DIAS, JUDGE**