Mohammed Anwar vs State Of Kerala

C.S.Dias, J

The applications are filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( in short, BNSS), by the accused 1 to 5 in Crime No.504/2024 of the Chavakkad Police Station, Thrissur, which is registered against them for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324, 308, 506 (i), and 201 r/w Section 149 of the Indian Penal Code. The petitioners were arrested and remanded to judicial custody on 17.07.2024. B.A No.6133/2024 is filed by the accused 1 to 4 and B.A.No.6177/2024 is filed by the 5th accused. As the applications arise out of the same crime, they were consolidated, jointly heard and are being disposed by this common order.

The crux of the prosecution case is that; on 25.06.2024, at around 16.00 hours, the accused, in prosecution of their common intention, had formed themselves into an unlawful assembly with dangerous weapons and the first accused called the de facto complainant and questioned him for chatting to his wife. Thereafter, he slapped the de facto complainant, the second accused caught hold of his neck and kicked on his navel and fisted on his back, the third accused hit the de facto complainant on his head with a casuarina stick. It is only because the de facto complainant evaded the attack, he did not lose his life. Thereafter, the third accused again struck the de facto complainant on his back with the same stick. The 4th accused fisted on his hip and the 5th accused kicked on his body, and five other identifiable persons also kicked the de facto complainant on different parts of his body. Thus, the accused have committed the above offences.

Heard; Sri.M.R.Sasith and Sri.Geo Paul, the learned counsel appearing for the petitioners and Smt. Seetha S. and Smt. Neema T.V., the learned Senior Public Prosecutors.

The learned counsel appearing for the petitioners submitted that the petitioners are innocent of the accusations levelled against them. There is no material to substantiate the petitioners’ involvement in the crime. The Investigating Officer has deliberately incorporated Section 308 of IPC, to see that the petitioners are incarcerated. The petitioners were arrested on 17.7.2024, the investigation in the case is practically complete and recovery has been effected. Furthermore, the petitioners do not have any criminal antecedents. Hence, the applications may be allowed.

The learned Public Prosecutors opposed the application. They submitted that investigation in the case is in progress. They also stated that if the petitioners are released on bail, there is every likelihood of them intimidating the witnesses and tampering with evidence. Nonetheless, they did not dispute the fact that the specific overt act of causing grievous injury on the de facto complainant is attributed against the third accused and also the accused do not have any criminal antecedents.

On an evaluation of the materials on record, it can be gathered that the specific overt act is alleged against the third accused, who had assaulted the de facto complainant with a casuarina stick on his head as well as on his back and he suffered grievous injuries to hip bone and back. The allegation against the other accused is that, they caught hold of the de facto complainant and fisted him with their hands and legs.

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 bail applications, generally, it has been laid down from the earliest times that, the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the specific overt act is only attributed against the third accused, who has caused a grievous hurt on the de facto complainant and the allegation against the other accused 1,2,4 and 5 is that, they fisted and kicked the de fact complainant, I am of the firm view that the accused 1,2, 4 and 5 are entitled to be released on bail. Since there is specific overt act alleged against the third accused, he is not entitled to bail at this stage.

In the result,

(a) B.A No.6133/2024 filed by the 3rd petitioner/3rd accused is dismissed.

(b) B.A No. 6133/2024 filed by the petitioners 1,2, and 4 and B.A. No.6177/2024 filed by the 5th accused is allowed, by directing the petitioners/accused 1,2,4 and 5 to be released on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each 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 petitioners/ accused 1, 2, 4 and 5 shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer as and when required;

(ii) The petitioners/ accused 1, 2, 4 and 5 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 petitioners/ accused 1, 2, 4 and 5 shall not commit any offence while they are on bail;

(iv) The petitioners/ accused 1, 2, 4 and 5 shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits 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 petitioners/ accused 1, 2, 4 and 5 even while the petitioners/ accused 1, 2, 4 and 5 are 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].