Mohammed Rihan vs State Of Kerala

C.S.Dias, J

1.The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the 12th accused in Crime No.481/2024 of the Irinjalakuda Police Station, Thrissur, which is registered against 21 accused persons for allegedly committing the offences punishable under Sections 143, 147, 148, 506(ii), 341, 323, 324, 307 and 302 r/w Section 149 of the Indian Penal Code. The petitioner was arrested and remanded to judicial custody on 05.04.2024.

The crux of the prosecution case is that, on 03.04.2024, at around 18:30 hours, the accused, in prosecution of their common intention, had formed themselves into an unlawful assembly due to their previous animosity towards the de facto complainant and his friends, and they wrongfully restrained the de facto complainant and his friends, and the first accused stabbed Akshay and Santhosh, who were along with the de facto complainant, with an intention to murder them. Then, the first accused also stabbed Prajith and the de facto complainant, and all the other accused assaulted the de facto complainant’s friends, namely Shahil, Santhosh, Abhilash, Manoj, Ajith, and Sujith, with knives and other deadly weapons. Due to the grievous injuries suffered by Akshay, he succumbed to his injuries, and the injured Santhosh succumbed to his injuries on 04.04.2024. Thus, the accused have committed the above offences.

Heard; Sri. Sarath Babu Kottakkal, the learned counsel appearing for the petitioner and Sri. C.K. Suresh., the learned Special Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been falsely implicated in the crime. By no stretch of imagination can the non-bailable offences be attributed against the petitioner since the specific overt act is attributed against the first accused in the crime. As per the orders in B.A. Nos. 4671, 4816, 4686, 5153, and 6100 of 2024, this Court has enlarged the accused 5, 10, 13, 17, 18, and 19 on bail. The petitioner is at par with the above accused. In any given case, the petitioner has been in judicial custody for more than 150 days, the investigation in this case is complete, the recovery has been effected, and the final report has been laid on 30.06.2024. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed.

The learned Special Public Prosecutor seriously opposed the application. He submitted that if the petitioner is enlarged on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed.

The prosecution allegation is that, the accused, had in prosecution of their common intention, wrongfully restrained the defacto complainant and his friends, and the accused 1 to 4 and 9 inflicted grievous injuries on the injured, and two persons named Akshay and Santhosh lost their lives in the incident.

On a meticulous scrutiny of the First Information Report as well as the other materials placed on record, it can be seen that the specific overt acts are alleged against the accused 1 to 4 and 9. The overt act alleged against the petitioner is that he assisted the accused 1 to 4 and 9 in committing the above offences. Indisputably, the accused 5, 10, 13, 17, 18 and 19 have already been enlarged on bail by this Court as per the orders referred to above. The petitioner has been in judicial custody for more than 150 days, the investigation is complete, and the final report has been laid.

It  is  well  settled  in  Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], that merely because a person has an antecedent, 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 Prabir Purkayastha v. State (NCT of Delhi)[2024 SCC OnLine SC 934], the Honourable Supreme Court has observed as follows:-

“21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to following observations made by this Court in the case of Roy V.D. v. State of Kerala[(2022) SCC OnLine SC 929 : 2022 INSC 756]:—

“7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.”

Recently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From its experience, it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is the rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, the Honourable Supreme Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts recognize the principle that “bail is the rule and jail is an exception.

Similarly, the Honourable Supreme Court in Javed Gulam Nabi Shaikh  v. State of Maharashtra and Another ((2024) SCC OnLine SC 1693), after surveying the case law on bail has observed as follows:

“19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.”

On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, and the law referred to the aforesaid decisions, particularly on considering the fact that the petitioner has been in judicial custody for more than 150 days, the investigation in the case is complete, the recovery has been effected, the final report has been laid, and the other accused, who are at par with the petitioner, have been enlarged on bail, I am of the firm 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 third Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No. 481/2024. 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) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Thrissur, without previous permission of the Jurisdictional Court.

(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].

(ix) The observations made in this order are only for the purpose of considering the applications and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts.