Jasim vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.115/2024 of the Railway Police Station, Ernakulam, registered against the accused for allegedly committing the offences under Section 379 r/w 34 of the Indian Penal Code. The petitioner was arrested on 28.03.2024.

The essence of the prosecution case is that; on 28.03.2024, the accused was found in possession of a stolen mobile phone along with other articles at Pulleppadi, Ernakulam. The accused was arrested with the stolen articles then and there at the spot. Thus, the accused have committed the above offences.

Heard; Sri. Muhammed Yasil, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik, the learned Senior 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. There are no materials to show that the petitioner has committed the above offences. In any given case, the petitioner has been in judicial custody since 28.03.2024, the investigation in the case is practically complete, and recovery has been effected. Moreover, the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that the petitioner is a native of West Bengal and does not have roots in the state of Kerala. If the petitioner is released on bail, there is every likelihood of him committing similar offences and fleeing from justice. Hence, the application may be dismissed.

The prosecution allegation against the petitioner is that, on 28.03.2024, he stole a mobile phone and other articles from the place of Pulleppady, Ernakulam. The fact remains that the petitioner has been in judicial custody for the last one month, the investigation in the case is practically complete, and recovery has been effected. It is trite law in Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81] that merely because a person does not have roots in a state, the same shall not be treated as a ground to deny bail to that person.

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.

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, which is 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.

After bestowing my anxious consideration to 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 one month, that the investigation in the case is piratically complete and recovery has been effected, and further that the petitioner does not have criminal antecedents, I am of the view that the petitioner’s further detention is not necessary. 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 on every alternative Saturday between 10 a.m. and 11 a.m. till the conclusion of the trial in Crime No.115/2024;

(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 them 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) The petitioner shall furnish his present address and permanent address, and his mobile phone number to the court below and the Investigating Officer;

(vi) 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.

(vii) 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].