Muhammed Riyas 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 1 and 2 in Crime No.304/2024 of the Cheruppulassery Police Station, Palakkad, registered against the accused, for allegedly committing the offences punishable under Sections 451, 341, 323 and 326 read with Sec.34 of the Indian Penal Code. The petitioners were arrested on 18.5.2024.

The gist of the prosecution case is that: on 17.5.2024, at around 19.15 hours, the accused, in furtherance of their common intention, trespassed into the shop of the de facto complainant and the first accused hit on the cheek and head of the de facto complainant and left hand with a plastic pipe, who suffered a fracture of his ring finger. The second accused also confined the de facto complainant and hit him. Thus, the accused have committed the above offences.

Heard; Sri.M.Sasindran, the learned counsel appearing for the petitioners and Smt.Neema T.V, the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. There are no incriminating materials to substantiate that the offence under Sec.326 is attracted. The Investigating Officer has deliberately incorporated the said offence to deny bail to the petitioners. In any given case, the petitioners have been in judicial custody for the last 22 days, the investigation in the case is practically complete and recovery has been effected. Hence, the petitioners may be released on bail.

The learned Public Prosecutor seriously opposed the application. She submitted that the investigation is in progress. She also stated that the second petitioner is a history-sheeter and proceedings have been initiated for his preventive detention. If the second petitioner is released on bail, there is a likelihood of him committing a similar offence. Hence, the application filed by the second petitioner may be dismissed.

On an evaluation of the materials on record, it can be seen that the accused had trespassed into the shop of the de facto complainant and first petitioner hit the de facto complainant with a plastic pipe which resulted in a fracture of his ring finger. The second petitioner is also alleged to have hit the de facto complainant. The fact remains that the petitioners have been in judicial custody since 18.5.2024. There are three cases registered against the second petitioner in the year 2023 and 2024 for allegedly committing the predicate offences under Secs.307 and 308 of the IPC. It is also stated that the Investigating Officer proposes to initiate preventive detention proceedings against the second petitioner due to his post bail conduct in the society.

Even though the principle that the bail is the rule and jail is an exception and right to bail cannot be denied due to the sentiments of the society, taking into account the criminal antecedents of the second petitioner, I am not inclined to release him on bail at this stage. Nonetheless, considering the fact that the first petitioner has no criminal antecedents, he has been in judicial custody for the last 22 days, the investigation in the case is practically complete and recovery has been effected, I am inclined to allow the application filed by the first petitioner.

In the result,

(i) The application filed by the second petitioner/second accused is dismissed.

(ii) The application filed by the first petitioner/first accused is allowed, by directing him 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 first 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 first 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 first petitioner shall not commit any offence while he is on bail;

(iv) The first 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) 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 first petitioner even while the first 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].