Kerala High Court

Muhammed Nishad vs State Of Kerala on 7 May, 2021

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

      THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

 FRIDAY, THE 07TH DAY OF MAY 2021 / 17TH VAISAKHA, 1943

                Bail Appl..No.3319 OF 2021

CRIME NO.27/2021 OF Melattur Police Station , Malappuram


PETITIONER/S:

     1     MUHAMMED NISHAD
           AGED 22 YEARS
           KIZHAKKUMPARAMBAN HOUSE,
           MADRASAPPADI,ORAVAMPURAM, NENMINI AMSOM,
           THACHINGANADAM POST
           676521

     2     MOYIN @VAPPU
           AGED 47 YEARS
           S/O MAMMUTTY, KIZHAKKUMPARAMBAN HOUSE,
           MADRASAPPADI, ORAVAMPURAM, NENMINI AMSOM,
           THACHINGANADAM POST
           676521

           BY ADVS.
           SRI.K.R.ARUN KRISHNAN
           SRI.P.K.VARGHESE
           SMT.SANJANA RACHEL JOSE

RESPONDENT/S:

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

     2     ADDL.R2.ARYADAN HASSAN
           (SOUGHT TO BE IMPLEADED)

           R1 BY PUBLIC PROSECUTOR
           R2 BY ADV. SRI.SOORAJ ELANJICKAL
 B.A.No.3319 & 3635 of 2021

                              ..2..



              R2 BY ADV. SRI.P.A.MOHAMMED SHAH

OTHER PRESENT:

              SR.P.P.SRI.C.N.PRABHAKARAN

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 07.05.2021, ALONG WITH Bail Appl..3635/2021, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
 B.A.No.3319 & 3635 of 2021

                               ..3..



          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

  FRIDAY, THE 07TH DAY OF MAY 2021 / 17TH VAISAKHA, 1943

                   Bail Appl..No.3635 OF 2021

 CRIME NO.27/2021 OF Melattur Police Station , Malappuram


PETITIONER/S:

              ABDUL MAJEED @ BASH
              AGED 39 YEARS
              KIZHAKKUMPARAMBAN HOUSE, MADRASSAPADI,
              ORAMPURAM, MALPPURAM DISTRICT
              679325

              BY ADV. SRI.P.Y.SHANAVAS

RESPONDENT/S:

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

              R1 BY PUBLIC PROSECUTOR
              SR.P.P.SRI.C.N.PRABHAKARAN

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 07.05.2021, ALONG WITH Bail Appl..3319/2021, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
 B.A.No.3319 & 3635 of 2021

                                    ..4..




                    P.V.KUNHIKRISHNAN, J.
               -------------------------------------------
                 B.A.No.3319 & 3635 of 2021
              ---------------------------------------------
             Dated this the 7th day of May, 2021

                               ORDER

These Bail Applications are filed under Section 439 of

Criminal Procedure Code was heard through Video

Conference. Since these Bail Applications are filed by the

accused in the same crime, I am disposing of these cases by a

common order.

2. The petitioners are the accused in crime

No.27/2021 of Melattur Police Station. The above case is

registered against the petitioners and others alleging offences

punishable under Sections 324, 307, 302 r/w Section 34 of the

Indian Penal Code.

3. The prosecution case in brief is as follows:- On

27.01.2021 at about 9.10 p.m., the accused due to previous

enmity towards Hamsa @ Bapputty and Mohammad Sameer,

assaulted and manhandled them by beating with sticks. It is B.A.No.3319 & 3635 of 2021

..5..

further alleged that the second accused stabbed Mohammad

Sameer using a knife causing fatal injury and while

undergoing treatment he succumbed to the injuries. Hence, it

is alleged that the accused committed the offence. The

petitioners were arrested and produced before the

Jurisdictional Court on 29.01.2021.

4. Heard the learned counsel for the petitioners and

the learned Public Prosecutor. The counsel for the petitioners

submitted that the petitioners are in custody from 29.01.2021

onwards. The investigation of the case is over and final report

filed. The counsel submitted that the petitioners are ready to

abide by any conditions, if this Court grant them bail. One of

the accused is released on bail. The Public Prosecutor

seriously opposed the bail application. The Public Prosecutor

submitted that the petitioners committed serious offence and

if the petitioners are released on bail, there will be law and

order problem in the locality. Heard the learned counsel for

the victim also. He also seriously opposed the Bail

Application. He argued that the offence is heinous. He relied

on the judgment of the Supreme Court in Prasanthkumar B.A.No.3319 & 3635 of 2021

..6..

Sarkar v. Ashish Chattergi [2010(14) SCC 496].

5. Admittedly, the petitioners are in custody from

29.01.2021 onwards. Now the petitioners are in custody for

more than 90 days. It is true that allegation against the

petitioners is very serious. The Prosecution submitted that

CCTV footage is also available to show the specific overt act of

the petitioners. One of the accused is already granted bail by

this Court. Considering the facts and circumstances, I think

this bail application can be allowed on stringent conditions.

The apprehension of the prosecution that there will be law

and order problem in the locality, if the petitioners are

released on bail is also to be considered. There can be a

direction to the petitioners not to enter jurisdictional limit of

Melatoor Police Station till main witnesses in this case are

examined.

6. Moreover, the 2nd wave of COVID-19 is spreading in

the country and the citizens are facing serious difficulties. In

the state of Kerala, the 2nd wave of the pandemic is creating

lot of problems and even the day-to-day life of the citizens are

affected. Everyday, about 25,000 people are tested positive B.A.No.3319 & 3635 of 2021

..7..

with COVID-19. In such circumstances, this Court has to

consider this fact also while considering bail applications. The

life is more important than anything. Therefore, I am

considering this bail application based on the above pandemic

situation.

7. Moreover, considering the need to follow social

distancing norms inside prisons so as to avert the spread of

the novel Corona Virus Pandemic, the Hon'ble Supreme Court

in Re: Contagion of COVID-19 Virus In Prisons case (Suo

Motu Writ Petition(C) No.1 of 2020) and a Full Bench of

this Court in W.P(C)No.9400 of 2020 issued various salutary

directions for minimizing the number of inmates inside

prisons. These happened during the 1 st wave of COVID-19

season.

8. Moreover, it is a well accepted principle that the

bail is the rule and the jail is the exception. The Hon'ble

Supreme Court in Chidambaram. P v Directorate of

Enforcement (2019 (16) SCALE 870), after considering all

the earlier judgments, observed that, the basic jurisprudence

relating to bail remains the same inasmuch as the grant of B.A.No.3319 & 3635 of 2021

..8..

bail is the rule and refusal is the exception so as to ensure

that the accused has the opportunity of securing fair trial.

9. Considering the dictum laid down in the above

decision and considering the facts and circumstances of this

case, this Bail Application is allowed with the following

directions:

1. The petitioners shall be released

on bail on executing a bond for Rs.50,000/-

(Rupees Fifty Thousand only) each with two

solvent sureties for the like sum each to the

satisfaction of the jurisdictional Court.

                   2.    The     petitioners    shall     appear

              before    the     Investigating        Officer   for

interrogation as and when required. The

petitioners shall co-operate with the

investigation and shall not, directly or

indirectly make any inducement, threat or

promise 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 B.A.No.3319 & 3635 of 2021

..9..

police officer.

3. The petitioners shall not leave

India without permission of the

jurisdictional Court.

4. The petitioners shall not commit

an offence similar to the offence of which

they are accused, or suspected, of the

commission of which they are suspected.

5. The petitioners shall strictly

abide by the various guidelines issued by

the State Government and Central

Government with respect to keeping of

social distancing in the wake of Covid 19

pandemic.

6. The petitioners shall not enter

the jurisdictional limit of Melattur Police

Station till the main eye-witnesses in this

case are examined during the trial. The

petitioners can enter the jurisdictional

limit, only for the purpose of appearing B.A.No.3319 & 3635 of 2021

..10..

before Jurisdictional Court and before the

Investigating Officer.

7. If any of the above conditions are

violated by the petitioner, the jurisdictional

Court can cancel the bail in accordance to