Muhammed Ashraf vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused in Crime No.384/2024 of the Kannur Town Police Station, Kannur, which is registered against him for allegedly committing the offences punishable under Sections 409 and 420 of the Indian Penal Code (in short, 'IPC'). The petitioner was arrested on 15.05.2024.

The gist of the prosecution case is that: the accused, while he was working as a daily wage employee in the Kerala Beedi Churuttu Thozhilali Kshemanidhi Board, Kannur (in short, 'Board'), misappropriated Rs.10/- lakh by way of vouchers and cheques entrusted to him. Thus, the accused has committed the above offences.

Heard; Sri.Abdul Raoof, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. He has been falsely implicated in the crime. The offences under Sections 409 and 420 of the IPC will not be attracted against the petitioner. In any given case, the petitioner has been in judicial custody for the last nearly 50 days, the investigation in the case is complete and recovery has been effected. 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 if the petitioner is released on bail, there is every likelihood of him tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed.

The allegation against the petitioner is that, while he was working as a daily wage employee in the Board, he misappropriated Rs.10/- lakh by misusing the vouchers and cheques of the Board. The fact remains that the petitioner has been in judicial custody for the last 50 days, the investigation in the case is complete and recovery has been effected. Furthermore, I do not find that the petitioner has any criminal antecedents.

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 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.

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. 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, particularly considering the fact that the petitioner has been in judicial custody for the last fifty days, the investigation in the case is complete and recovery has been effected, I am of the firm view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the bail application.

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. Application 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].