Bilal vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sixth accused in Crime No.607/2024 of the Tirur Police Station, Malappuram, registered against the accused (7 in number) for allegedly committing the offences punishable under Sections 341, 323, 324 and 308 r/w Section 149 of the Indian Penal Code. The petitioner was arrested on 14.05.2024.

The crux of the prosecution case is that; on 19.4.2024, at around 23 hours, the accused, in prosecution of their common intention, formed themselves into an unlawful assembly with deadly weapons and wrongfully restrained the de facto complainant and attacked him with a granite piece. The first accused hit the de facto complainant on his face and when he fell down on the ground, the accused 1 to 6 kicked him on his body and he suffered serious injuries, including loosening of his front teeth. It is only because the de facto complainant evaded the attack made by the first accused, he did not lose his life. Thus, the accused have committed the above offences.

Heard; Sri.P.T. Sheejish, the learned counsel appearing for the petitioner and Smt.Seetha S, the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure A1 FIR and also the FIS would establish that the specific overt act is alleged against the first accused, who attempted to hit the de facto complainant on his head. The only overt act alleged against the petitioner is that, when the de facto complainant fell down the ground, he along with other accused attempted to kick him on his body. The fact remains that, the petitioner has been in judicial custody for the last 23 days, the investigation in the case, so far the petitioner is concerned, is practically complete and recovery has been effected. Therefore, the petitioner may be enlarged on bail.

The   learned   Public   Prosecutor   seriously opposed the application. She submitted that the petitioner is a history sheeter, since he is involved in 8 other crimes of the Tirur Police Station spanning from 2007 to 2022 for allegedly committing various offences under the IPC. 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.

On an evaluation of the prosecution allegation, it can be gathered that the specific overt act is alleged against the first accused, who attempted to hit the de facto complainant with a granite piece on his head. It is only because he warded off the attack, he did not lose his life. The overt act alleged against the petitioner is that, when the de facto complainant fell on the ground, he along with the other accused stamped him on the body of the de facto complainant.

It  is  well  settled  in  Hussainara  Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], that merely because a person has antecedents, the same shall not be treated as a ground to deny bail to that person. Moreover, I find that the crimes are spanning from the year 2007 to 2022.

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 State of Kerala v. Raneef, [(2011) 1 SCC 784], the Honourable Supreme Court has declared 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.

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 considering the fact that the petitioner has been in judicial custody for the last 23 days, the investigation in the case, so far the petitioner is concerned, is practically complete and recovery has been effected, notwithstanding the antecedents of the petitioner, 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].