Zakkariya v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 4414 OF 2024 ``` ``` CRIME NO.228/2024 OF BADIADUKKA POLICE STATION, KASARGOD ``` ## **`PETITIONER/ACCUSED:`** ``` ZAKKARIYA, AGED 23 YEARS S/O HANEEF (LATE) CHEDAKKAL HOUSE, BELLA VILLAGE, BADIYADUKKA KASARGODE, PIN - 671315 ``` ``` BY ADVS. P.E.SAJAL AJAS K.S. ``` ## **`RESPONDENT/STATE /DEFACTO COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.4414 of 2024** ``` 2 ``` **Dated this the 4[th] day of June, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.228/2024 of the Badiadukka Police Station, Kasaragod, registered against him for allegedly committing the offences punishable under Sections 341, 323, 324 and 308 of the Indian Penal Code. The petitioner was arrested on 30.04.2024. 2. The crux of the prosecution case is that; on 29.04.2024, at around 21.30 hours, while the defacto complainant and his brother were walking to a shop, the defacto complainant questioned the accused about teasing him. Then, the accused got infuriated and hit the defacto complainant on his nose. Thereafter, he took a knife from his shop and attempted to stab the ``` 3 ``` ## **B.A. No.4414 of 2024** defacato complainant. It is only because the defacto complainant warded off the attack, he did not lose his life. However, the defacto complainant’s brother sustained an injury on his head in the attack. Thus, the accused have committed the above offences. 3. Heard; Sri. P.E. Sajal., the learned counsel appearing for the petitioner and Smt. Seetha.S the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of the FIR would establish that the offence under Section 308 will not be attracted to the facts of the case. The Investigating Officer has deliberately incorporated the said offence to deny bail to the petitioner. In fact, the petitioner also sustained injuries in the very same incident, and Annexure A1 FIR is registered against the **B.A. No.4414 of 2024** ``` 4 ``` defacto complainant and his brother for committing the offence under Section 308 of the IPC. The said accused have been granted by the Court of Session, Kasaragod, as per the order dated 27.05.2024, in Crl.M.C.No.518/2024. In any given case, the petitioner has been in judicial custody for the last 36 days, the investigation in the case is practically complete, and recovery has been effected. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the investigation in the case is in progress. She also stated that if the petitioner is released on bail, there is every likelihood of him tampering with evidence and intimidating the witnesses. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that there is a countercase registered against the defacto ``` 5 ``` ## **B.A. No.4414 of 2024** complainant and his brother as per Annexure A1 FIR and that the said accused have been enlarged on bail by the Court of Session, Kasaragod. 6. On an evaluation of the materials on record, it can be gathered that the prosecution allegation against the petitioner is that he attempted to stab the defacto complainant and his brother. However, in the said incident, the brother of the defacto complainant sustained an injury on his head. The fact remains that the petitioner has been in judicial custody since 30.04.2024, the investigation in the case is practically complete, and the 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 ``` 6 ``` ## **B.A. No.4414 of 2024** 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. 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. 9. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioner has been in judicial custody for the last 36 days, that the investigation in the case is practically complete, and that the recovery has been effected, I am of the view that the petitioner’s further detention is not necessary. Hence, I am inclined to allow the bail ``` 7 ``` ## **B.A. No.4414 of 2024** 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 till the final report is laid. 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.4414 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 **B.A. No.4414 of 2024** ``` 9 ``` accordance with law. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (viii) 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].** mtk/04.06.24 **C.S.DIAS, JUDGE**