Arbaz Khan vs State Of Kerala
2021 Latest Caselaw 307 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

         THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

   WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

                      Bail Appl..No.8043 OF 2020

  CRIME NO.83/2020 OF ERNAKULAM NORTH POLICE STATION , ERNAKULAM


PETITIONER/ACCUSED:

              ARBAZ KHAN
              AGED 30 YEARS
              SON OF GHAYAS KHAN,
              CHAUDHRI CHOK, ALIGARH, DOHARRA MAFI, KOLI,
              ALIGARH, UTTAR PRADESH
              PIN - 202001

              BY ADV. SMT.ANITHA MATHAI MUTHIRENTHY

RESPONDENT:

              STATE OF KERALA
              REPRESENTED BY PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA
              682031




              SRI SUMAN CHAKRAVARTHY SR PUBLIC PROSECUTOR

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION            ON
06.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Bail Appl..No.8043 OF 2020             2




                                       ORDER

This petition is filed under Section 439 of the Code of Criminal Procedure.

2. The petitioner herein is the 1st accused in S.C.No.463 of 2020 on the

file of the Additional Sessions Judge-VII, Ernakulam. In the said case, he faces

indictment under Sections 454, 459, 392, 394 read with Section 34 of the Indian

Penal Code.

3. It is the case of the prosecution that on 21.2.2020 at about 11.45

am, the petitioner herein along with the 2nd accused, with intent to commit

robbery, trespassed into the house of the de facto complainant, an old lady, and

committed robbery after wrongfully restraining her and caused hurt. On hearing

the cries of the lady, neighbours came to her rescue and the petitioner is alleged to

have been apprehended while he was attempting to make good his escape. The

petitioner was arrested on 21.2.2020 and he has been in custody since then. The

investigation was completed and final report was laid on 27.4.2020. The case was

committed to the Court of Session and it appears that the charge has not been

framed. The petitioner moved an application before the Court of Session and by

Annexure-1 order, his application was rejected.

4. Smt.Anitha Mathai Muthirenthy, the learned counsel appearing for the

petitioner, submitted that bail was denied to the petitioner on the ground that he is

a native of Uttar Pradesh. According to the learned counsel, the petitioner is

innocent and he was apprehended while he was found in the vicinity. According to

the learned counsel, the petitioner is not involved in any other crimes and his

continued detention in the facts and circumstances is unwarranted. It is pointed

out that the petitioner is a citizen of India and reference is made to Annexure- 2

Aadhar Card wherein his details and address is mentioned. According to the

learned counsel, a certain Mookada Aboobacker Rahim has filed an affidavit before

this Court undertaking that he shall arrange accommodation for the petitioner at a

house at Vazhakulam Panchayat Door No. 124, Ward No. 8, Vazhakulam

Panchayat, Mudikkal P.O., Perumbavoor and that he shall also arrange a job for the

petitioner in a plywood factory at Perumbavoor. According to the learned counsel,

the petitioner shall comply with all conditions that may be imposed on him to

ensure that he shall not leave the Ernakulam District till the trial is completed. The

petitioner is also prepared to furnish local sureties to the satisfaction of the

jurisdictional court, contends the learned counsel.

5. Smt. Anitha would rely on the judgment of the Apex Court in Sanjay

Chandra v. CBI [(2012) 1 SCC 40], it was argued by the learned counsel that it

would be quite contrary to the concept of personal liberty enshrined in the

Constitution that any person should be punished in respect of any matter, upon

which, he has not been convicted or that in any circumstances, he should be

deprived of his liberty upon only the belief that he will tamper with the witnesses if

left at liberty, save in the most extraordinary circumstances. She would

vehemently urge that 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. It was urged that the fundamental postulate of criminal

jurisprudence is the presumption of innocence, meaning thereby that a person is

believed to be innocent until found guilty. Referring to the judgment of the

Hon'ble Apex Court in Dataram Singh v. State of Uttar Pradesh [2018 (3) SCC

22], it was submitted that 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, submits the learned counsel. Reliance is also placed on the decision of

the Apex Court in State of Kerala v. Raneef [(2011) 1 SCC 784] and it was

argued that when under-trial prisoners are detained in jail custody for an indefinite

period, Article 21 of the Constitution is violated.

6. Finally, the learned counsel submitted that the likelihood of the

petitioner interfering with the prosecution witnesses or otherwise polluting the

process of justice can be totally extenuated by imposing appropriate conditions.

The long period of detention undergone by the petitioner is highlighted by the

learned counsel to persuade this Court to release him on stringent conditions.

7. Sri.Suman Chakravarthy, the learned Public Prosecutor has

vehemently opposed the prayer. It is contended that the petitioner had approached

this Court earlier and by Annexure- 3 order dated 3.7.2020, this Court had rejected

the application. There is no change in circumstances to take a different view now.

It is further submitted that the victim is a senior citizen and in her 80's. She was

brutally attacked by the petitioner and his friend and she was even threatened by

brandishing guns. If the petitioner is released on bail, there is every likelihood that

he would make himself scarce, and turn the trial into a farce. Relying on the

judgment of the Apex court in Pramod Kumar Saxena v. Union of India and

Ors. [2008 KHC 6796], it was argued that detention in jail as an undertrial

prisoner would not be violative of Article 21 of the Constitution. According to the

learned counsel, the evidence collected by the prosecution clearly shows the

involvement of the petitioner herein.

8. I have anxiously considered the submissions and have perused the

materials which are made available.

9. The records reveal that the petitioner herein was arrested in

connection with the aforesaid crime on 21.2.2020 and he has been in custody for

almost an year. There cannot be any doubt that the allegations raised against the

petitioner are grave. The petitioner along with another man had trespassed into

the house of the victim and had committed robbery of her mobile phone. Some

injuries were also inflicted. The final report was laid on 27.4.2020. To ascertain the

prospects of expediting the trial, this Court had called for a report from the Court

of Session. In the said report, it is stated that the charge is yet to be framed and

the prosecution proposes to examine 21 witnesses to prove its case. In view of

the restrictions imposed due to the pandemic, there can be some delay in securing

the presence of the witnesses, states the learned Sessions Judge.

10. The petitioner has stated that he shall remain in the State of Kerala.

He has been provided with an avocation and place of residence by Sri. Mookada

Aboobacker Rahim and the said person has sworn to an affidavit as well.

Annexure- 2 Aadhar card produced by the petitioner shows that he has a

permanent place of abode. As held by the Apex Court in G.Narasimhulu v.

Public Prosecutor [AIR 1978 SC 429] , the requirement for bail is to secure the

attendance of the prisoner and it is the duty of the court to admit the accused to

bail, wherever practical, unless there are strong grounds for supposing that such

person will not appear to take the trial. It is trite that the principles which should

guide the Courts in exercise of their discretion to grant bail or not are the

probability of the accused appearing to take the trial and not his supposed guilt or

innocence. The fact that the petitioner has no criminal involvement prior to the

incident cannot be lost sight of. Having regard to the period of detention

undergone, lack of criminal antecedents and attendant facts, I am of the view that

by imposing stringent conditions to ensure the interest of the prosecution, he can

now be released on bail.

In the result, this application will stand allowed and the petitioner shall be

released on bail on his 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 sureties shall be persons having immovable properties in

the State of Kerala. The above order shall be subject to the following conditions.

1. The petitioner shall record his presence at Perumbavoor by appearing before the Station House Officer, Perumbavoor Police Station between 10 am and 11 am on all Sundays. The Station House Officer, Perumbavoor police station shall regularly

intimate the Inspector of Police, Ernakulam Town North police station about the said fact.

2. The petitioner shall reside at Vazhakulam Panchayat Door No. 124, Ward No. 8, Vazhakulam Panchayat, Mudikkal P.O., Perumbavoor and he shall furnish his mobile number, local address and permanent address to the investigating officer within a period of one week from the date of enlargement of bail. He shall not change his place of residence and mobile phone number without securing previous consent of the investigating officer.

3. He shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence. He shall not contact the victim.

4. He shall not commit any offence while he is on bail.

5. He shall not leave Ernakulam District until the trial is over.

6. He shall surrender his passport before the court below or if he does not have one, he shall file an affidavit to that effect within five days of his release. Application for release of the passport, if any, shall be considered by the Trial court at the appropriate stage.

In case of violation of any of the above conditions, the jurisdictional Court shall

be empowered to consider the application for cancellation, if any, and pass

appropriate orders in accordance with the law.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE

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