Mohammed Ismail vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, by the 7th accused in Crime No.464/2023 of the Manjeshwar Police Station, Kasaragod, registered against the accused (7 in number) for allegedly committing the offences punishable under Sections 449, 201, 212, 120(B) and 302 r/w Section 34 of the Indian Penal Code. The petitioner has been in judicial custody since 07.07.2023.

The crux of the prosecution case is that: on 03.06.2023 at about 2.00 a.m, the accused 1 to 6, in furtherance of their common intention, trespassed into the house of the brother of the first accused, Sri. Prabhakara Nonda (deceased), situated at Kalayi in Paivalike village, and committed the murder of the deceased by chopping and cutting him with a sword and knife. The motive behind the crime is because there was a property dispute between the first accused and the deceased. The murder was committed as a result of the conspiracy that was hatched between the accused. On 02.06.2023, at night, the 7th accused along with accused 3 went in the auto rickshaw belonging to the 7th accused and met the 4th accused. They planned the murder and arranged facilities for them to hide. After the murder, the 7th accused took the accused 4 to 6 to Kasaragod Bus Stand in his auto rickshaw and permitted them to flee. Thus, the accused have committed the above offences.

Heard; Sri.Kodoth Sreedharan, 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. There is no specific overt act alleged against the petitioner other than alleging that he conspired with the accused 1 to 6 in committing the murder of the deceased. The petitioner is only an autorickshaw driver. He is the sole breadwinner of his family. The petitioner has been in judicial custody since 07.07.2023, which is 210 days. The investigation in the case is complete, recovery has been effected and the final report has been laid. The petitioner’s further detention is not necessary. The petitioner is willing to cooperate with the Investigating Officer and also abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed.

The learned Public Prosecutor vehemently opposed the application. He contended that the petitioner had hatched a conspiracy with the accused 2 to 6 for committing the murder, which was for reward. It has been unveiled that the first accused paid an amount of Rs. 20/- lakh to the second accused to do away with his brother. The petitioner and the other accused have also received remuneration for committing the crime. If the petitioner is let off on bail, there is every likelihood of him tampering with the evidence and influencing the witnesses. Hence, the application may be dismissed. Moreover, the petitioner has two criminal antecedents, as he is involved in two other cases for allegedly committing the offences under Sections 392 and 283 of the IPC. The postmortem certificate reveals that the deceased had suffered 60 antemortem injuries, which establishes the heinous nature of the crime. Hence, the application may be dismissed.

The prosecution allegation against the petitioner is that, he, along with the accused 2 to 6, hatched a conspiracy as requested by the first accused to do away with the deceased. Accordingly, the petitioner took the accused 2 to 6 in his autorickshaw to the house of the deceased, and the accused 2 to 6 committed the murder of the deceased. Subsequently, the petitioner transported the accused 2 to 6 in his autorickshaw to the Kasaragod Bus Stand and permitted them to flee from the scene of the occurrence. In the above background, Sections 120B and 34 have been incorporated. Therefore, the petitioner has an active role in the crime.

The petitioner’s contention is that the accusations levelled against him are only an imagination of the Investigating Officer. The petitioner is only an autorickshaw driver. Even assuming that the petitioner was called by the accused 2 to 6, and that is for hire. The petitioner has no motive and has not indulged in the crime. There is no overt act alleged against the petitioner in committing the murder of the deceased. The learned Public Prosecutor, on the other hand, opposed the application on the ground that Section 120B has been incorporated because the conspiracy was hatched with the accused 2 to 7 and the petitioner has received remuneration for committing the murder.

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 a 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 a 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.

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

In Manish Sisodia v. Central Bureau of Investigation [2023 SCC OnLine SC 1393] the Hon’ble Supreme Court held thus:

“29. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years”.

On a cumulative appreciation of the facts, the materials placed on record, the rival submissions made across the Bar and the settled proposition of law, and taking note of the accusations levelled against the petitioner, that he had only take the accused 2 to 6 to the place of occurrence in his autorickshaw on hire as the driver, that the petitioner has been in judicial custody since 07.07.2023, that the investigation in the case is complete, that the recovery has been effected, and that the final report has been laid, I am of the definite view that the petitioner’s further detention is not necessary. Hence, I am inclined to allow the 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.1,00,000/- (Rupees One Lakh only) with two solvent sureties each for the like sum, to the satisfaction of the Trial Court, 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, until the completion of trial in S.C.No.992/2023 of the Court of Session Kasaragod. He shall also appear before the Station House 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) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Kollam, without the previous permission of the court below.

(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.

(viii) 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].