Shahanas vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 9th accused in Crime No.234/2024 of the Chathannoor Police Station, Kollam, registered against the accused (12 in number) for allegedly committing the offences under Sections 143, 147, 148, 341, 323, 324 and 307 r/w Section 149 of the Indian Penal Code. The petitioner was arrested on 06.03.2024.

The crux of the prosecution case, is that; on 26.02.2024 at around 18.50 hours, the accused 1 to 7, in prosecution of their common intention to assault and murder the defacto complainant, wrongfully restrained him, and the first accused stabbed the defacto complainant on different parts of his body. They also attempted to snatch the gold chain of the defacto complainant. Thus, the accused have committed the above offences.

Heard Sri. Rahul. P, learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor appearing for the respondent.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of Annexure A1 FIR would substantiate that the petitioner has not committed the offence under Section 307 of the IPC. The said offence has been deliberately incorporated to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody since 06.03.2024, the investigation in the case is complete, and the recovery has been effected. Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the application. She submitted that the investigation in the case is in progress. She made available the Accident Register-Cum-Wound Certificate of the defacto complainant dated 04.03.2024 to substantiate the nature of the injury suffered by the defacto complainant. She submitted that if the petitioner is released on bail, there is every likelihood of him interfering with the investigation and influencing the witnesses. Therefore, the application may be dismissed.

The prosecution allegation is that the accused, in prosecution of their common intention, had wrongfully restrained the defacto complainant, and the first accused stabbed him with a knife, and he suffered grievous injuries. Indisputably, the specific overt act is alleged against the first accused, who stabbed the defacto complainant with a knife. There is no specific overt act alleged against the petitioner to have committed the offence under Section 307 of the IPC.

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.

Subsequently,  in  State  of  Kerala  v.  Raneef, [(2011) 1 SCC 784], the Honourable Supreme Court has again held that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution.

After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, and taking into account the fact that the specific overt act is alleged against the first accused, further that the petitioner has been in judicial custody since 28.02.2024, that the investigation in the case is practically complete and the recovery has been effected, I am of the definite view that the petitioner’s further detention is not necessary. 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.1,00,000/- (Rupees one lakh only) with two solvent sureties (preferably one of them from the State of Kerala) 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 Tuesday and 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) The petitioner shall furnish his present address and his mobile phone number and the place where he proposes to stay till the final report is laid;

(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].