Ansar @ Afsal vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 9th accused in Crime No.821/2023 of the Vadakkekkad Police Station, Thrissur, registered against the accused (ten in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324, 326, 294(b), 506(ii), and 307 r/w Section 149 of the Indian Penal Code. The petitioner was arrested on 24.03.2024.

The essence of the prosecution case is that; on 17.8.2023, the accused, in prosecution of their common intention, formed themselves into an unlawful assembly and attempted to commit murder of the de facto complainant and his friend (injured). The accused thereafter pelted stones on the injured and inflicted a cut injury on the de facto complainant with a sword. Thus, the accused have committed the above offences.

Heard; Sri.Ahamed Fazile C., learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of the First Information Report would establish that the offence under Section 307 of IPC cannot be attributed against the petitioner. The petitioner has been arrayed as an accused in the crime only due to his previous animosity with the Investigating Officer. In any given case, the petitioner has been in judicial custody for the last 63 days, the investigation in the case is practically complete and recovery has been effected. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. She submitted that 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. Hence, the application may be dismissed.

On an evaluation of the prosecution allegation, it can be gathered that, the accused, out of previous animosity towards the de facto complainant and his friend, had formed themselves into an unlawful assembly and allegedly caused grievous injuries to the de facto complainant with a sword. The fact remains that the petitioner has been in judicial custody for the last 63 days, the investigation in the case is practically complete and recovery has been effected.

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 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.

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.

On an anxious consideration of the facts, the rival  submissions  made  across  the  Bar,  and  the materials placed on record, especially on comprehending the fact that the petitioner has been in judicial custody for the last 63 days, the investigation in the case is complete and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail 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 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].