Muhammed Sahavas.C.M vs State Of Kerala

Raja Vijayaraghavan V, J

The above captioned application seeking regular bail has been filed under Section 439 of the Code of Criminal Procedure (“Code†for short) by

the accused Nos. 2 and 8 in Crime No. 409/2019 of Tanur Police Station, registered under sections 143, 147, 148, 341, 324, 326, 201, 120(B), 302 read

with section 149 of the Indian Penal Code.

The prosecution case in brief is that on 24-10-2019 at about 19.45 hours, the applicants along with the rest of the accused, after having armed

themselves with deadly weapons, formed into an unlawful assembly and in prosecution of their common object, attacked one Rafeeq causing fatal

injuries. The applicants herein were arrested in connection with the crime on 31-10-2019 and they remain in custody since then. The investigation was

completed and the final report was laid before the jurisdictional Court. The case is now pending as S.C.No. 193 of 2020 on the file of the Additional

Sessions Court, Tirur.

Sri.P. Vijayabhanu, the learned Senior Counsel appearing for the petitioners submitted that the 1st petitioner is 19 years of age and the 2nd

petitioner is 21 years old. They were arrested on 31.10.2019 and have been in custody since then. It is contended that the investigation in the aforesaid

crime was completed and the final report has been laid and the case is now pending trial before the Court of Session. According to the learned Senior

Counsel, there is a long and unexplained delay in setting the law in motion. In the FIR, the names of only 4 persons are mentioned. Much later, after

deliberations, several others were arrayed as accused. Referring to the final report, it is submitted by the learned Senior Counsel, that the statement of

most of the material witnesses were recorded after much delay, which in some cases, extended upto a month. It is further submitted that the 9th

accused in the aforesaid crime, who is facing similar allegations, was granted bail by a Coordinate Bench of this Court by order dated 02.07.2020 in

B.A.No.2461 of 2021 after taking note of the fact that he is not a person with criminal antecedents and also the fact that the likelihood of the trial

commencing in the near future is remote. It is submitted that insofar as the 1st petitioner is concerned, he is not involved in any previous crimes and

insofar as the 2nd petitioner is concerned, the only case in which he is involved in a previous crime which was registered inter alia under Section 447

of the IPC.

The learned Public Prosecutor has strenuously opposed the prayer. It is submitted that Rafeek had sustained as many as 52 cut injuries on various

parts of his body and this fact is evident from the medical records. According to the learned counsel, there were witnesses to the occurrence and they

have clearly narrated to the police the details of the assailants and the manner in which the injuries were inflicted. According to the learned Public

Prosecutor, the mere fact that the accused have been in prison for commission of a grave crime for a considerable period is no reason to grant bail.

Reasonable restrictions have been put in place so that a balance is struck between the right of liberty of the person accused of an offence and the

interest of the society. In so far as the antecedents of the petitioners are concerned, it is submitted that the 2nd petitioner is previously involved in the

commission of a crime which however, is not of any grave variety.

The principles, which the Court must consider while granting or declining bail, have been stated by the Apex Court in a catena of cases. In Prahlad

Singh Bhati v. NCT, Delhi [(2001) 4 SCC 280], it was held thus:

“The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in

an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the

severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar

to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered

with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail

the legislature has used the words ""reasonable grounds for believing"" instead of ""the evidence"" which means the court dealing with the grant of bail

can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence

in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.â€​

The very same principles were reiterated in State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21] as well.

I take note of the fact that the 1st petitioner is a teenager and the 2nd petitioner is 21 years of age. There cannot be any dispute that the allegations

levelled against them are most grave. At the same time, I find that the investigation has been completed and the final report has been laid. The

petitioners have been in custody for over 1 ½ years. Due to the outbreak of Covid-19, the functioning of the courts have been affected. There is

every likelihood that the trial would get further prolonged. Taking note of all these aspects, this Court by Annexure-A4 order has granted bail to the

8th accused. The fact that he is not a person with criminal antecedents were also taken note of. As held by the Apex Court in Sanjay Chandra v. CBI

[(2012) 1 SCC 40], the fundamental postulate of criminal jurisprudence is the presumption of innocence, that is a person is believed to be innocent until

found guilty and it would be contrary to the concept of personal liberty if any person should be punished before conviction in respect of any matter or

under any circumstances, upon the belief that he will tamper with the witnesses if left at liberty. Any imprisonment before conviction has a substantial

punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been

convicted for it or not or to refuse bail to an under trial for the purpose of giving him a taste of imprisonment as a lesson. The Hon'ble Apex Court in

Dataram Singh v. State of Uttar Pradesh [(2018) 3 SCC 22] had held that grant of bail is the general rule and putting a person in jail or prison is an

exception. Even though the grant or denial of bail is entirely the discretion of the Judge, in the facts and circumstances of each case, the exercise of

judicial discretion has been circumscribed by the decisions of the Apex Court as well as this Court. The jurisdiction must be exercised judiciously, in a

humane manner and compassionately without being carried away by the severity of the allegations. In State of Kerala v. Raneef [(2011) 1 SCC 784],

it was held that when under-trial prisoners are detained in jail custody for an indefinite period due to the delay in concluding the trial, Article 21 of the

Constitution is violated.

Having regard to the fact that the final report has been laid after completion of investigation and taking note of the period of incarceration

undergone, the reasonable possibility of securing their presence at the stage of trial and the reasonable apprehension of the witnesses being tampered

with, I am of the view that the further detention of the applicants in custody is not necessary. They can now be granted bail by imposing stringent

conditions. It is made clear that any expression of opinion for the purpose of deciding this bail application shall not be regarded as an expression on

merits of the case.

In the result, this application will stand allowed. The applicants shall be released on bail on each of them 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 court having jurisdiction. The above order shall be subject to

the following conditions:

1). They shall not intimidate or attempt to influence the witnesses; nor shall they tamper with the evidence.

2). They shall not commit any similar offence while on bail.

3) They shall not leave the State of Kerala without seeking previous permission from the court having jurisdiction.

4). They shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; If release of the

passport is required at a later period, the applicant shall be at liberty to move appropriate application before the Court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application forÂ

cancellation, if any, and pass appropriate orders in accordance with the law.