Muneer K.P vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the seventh accused in Crime No.321/2024 of the Karipur Police Station, Malappuram, registered against the accused (seven in number), for allegedly committing the offences punishable under Sections 399 and 120B of the Indian Penal Code. The petitioner was arrested on 1.5.2024.

The gist of the prosecution case is that; on 30.4.2024, at around 19.30 hours, the accused had hatched a conspiracy to commit the dacoity of the gold that was being illegally transported by the second accused by a flight from Doha. In pursuance of the conspiracy, all the accused persons, other than for the accused No.2, reached the Calicut International Airport. However, the second accused who transported 760 grams of gold entrusted to the real agent. Therefore, the accused did not get the gold. Thus, the accused have committed the above offences.

Heard; Sri.T.P Sajid, the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no incriminating material to show that the petitioner has committed the above offences. A reading of Annexure A3 FIR would show that there was only an alleged attempt to commit dacoity of the gold transported by the second accused. The petitioner was only accompanying the accused 1 and 3 to 6. In any given case, the petitioner has been in judicial custody since 1.5.2024, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that the petitioner is an accused in crime No.973/2023 of the Panur Police Station, which is registered against him under Sec.118(a) of the Kerala Police Act. If the petitioner is released on bail, there is a likelihood of him committing similar offences. Hence, the application may be dismissed.

The prosecution allegation is that, the accused 1 and 3 to 7 had hatched a conspiracy to commit dacoity of the gold that was illegally being transported by the second accused from Doha. However, the second accused handed over the gold to the real agent and, therefore, the accused attempted to commit dacoity was foiled. The fact remains that the petitioner has been in judicial custody for the last 34 days, the investigation in the case is complete and recovery has been effected. The petitioner does not have any criminal antecedents of similar nature.

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.

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. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, especially considering the fact that there is no specific overt act alleged against the petitioner, that the petitioner has been in judicial custody for the last 34 days, that the investigation in the case is practically complete and recovery has been effected, I am of the definite 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 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 them 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) 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 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].