Abdul Rahman Alias Rahim vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 4th accused in Crime No.321/2024 of the Vadakkekad Police Station, Thrissur, registered against the accused (four in number) for allegedly committing the offences under Sections 341, 324 and 308 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 28.04.2024.

The crux of the prosecution case is that; on 13.04.2024, at around 13.00 hours, the accused, in furtherance of their common intention, obstructed the vehicle of the defacto complainant. Then, the third accused attacked the defacto complainant with a blade and attempted to cause his death. It is only because the defacto complainant warded off the attack, he did not lose his life. The other accused assisted the defacto complainant in committing the above crime. Thus, the accused have committed the above offences.

Heard; Sri. M.R.Sasith, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik. the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The offence under Section 308 cannot be attributed against the petitioner because the specific overt act is only alleged against the third accused, who allegedly inflicted the injury on the defacto complainant. In any given case, the petitioner has been in judicial custody for the last 45 days, the investigation in the case is complete, and the recovery has been effected. Moreover, the petitioner does not have any criminal antecedents. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that if the petitioner is released on bail, there is every likelihood of him tampering with the evidence. Nonetheless, he did not dispute the fact that the specific overt act is only alleged against the third accused, who attacked the defacto complainant with a blade and caused injury to him and the petitioner does not have criminal antecedents.

On an analysis of the allegations in the FIR, it can be gathered that it was the third accused who allegedly attacked the defacto complainant with a blade. The allegation against the petitioner is that he, along with other accused, assisted the third accused for committing the crime. The fact remains that the petitioner has been in judicial custody for the last 45 days, the investigation in the case is practically complete, and the recovery has been effected. Furthermore, the petitioner is a person without criminal antecedents.

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.

In Dataram Singh v. State of U.P., [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is the 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.

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. The right to bail cannot be denied merely due to the sentiments of the society.

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 45 days, that the investigation in the case is practically complete, and that the recovery has been effected, further that the petitioner does not have criminal antecedents, I am of the definite view that the petitioner’s further detention is not necessary. 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 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 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 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].