Kerala High Court
Afsal vs State Of Kerala on 6 May, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 6TH DAY OF MAY 2022 / 16TH VAISAKHA, 1944
BAIL APPL. NO. 3465 OF 2022
CRIME NO.197/2022 OF Thadiyittaparamba Police Station, Ernakulam
PETITIONER:
AFSAL
AGED 48 YEARS
SON OF ABDUL RAHMAN, KUTTIKATTIL HOUSE,
KAIPOORIKARA, VAZHAKULAM VILLAGE,
PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 686670
BY ADVS.
K.R.PRATHISH
S.UNNIKRISHNAN (NELLAD)
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
SMT.SREEJA V, SR.PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 3465 OF 2022
2
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A. No.3465 of 2022
-------------------------------
Dated this the 6th day of May, 2022
ORDER
This Bail Application is filed under Section 439 of
Criminal Procedure Code.
2. Petitioner is the accused in Crime No.197 of 2022 of
the Thadiyittaparambu Police Station. The above case is
registered against the petitioner alleging offences
punishable under Section 77 of the Juvenile Justice (Care
and Protection of Children) Act, 2015, Section 118 (i) of
Kerala Police Act and Section 6(a), 6(b), 24 of the Cigarette
and Other Tobacco Products Prevention Act, 2003. The
petitioner is in custody from 16.03.2022.
3. The prosecution case is that on 16.03.2022 at 6.50
pm, the accused was found selling prohibited tobacco
product namely 'Hans' from his shop situated near
Hidayatul Muslimeen Madrassa, Kaipoorikara, to a minor
BAIL APPL. NO. 3465 OF 2022
child aged about 12 years and also found keeping in his
possession 2414 packets of 'Hans' in the autorickshaw
bearing registration No.KL-07-CG-9886 and a car bearing
registration No.KL-40-P-9097, which were parked near his
shop. Hence it is alleged that the accused committed
offence.
4. Heard counsel for the petitioner and the Public
Prosecutor. The counsel for the petitioner submitted that
the petitioner is in custody from 16.03.2022 onwards. The
counsel for the petitioner submitted that the petitioner is
falsely implicated in this case. The counsel for the
petitioner submitted that the petitioner is ready to abide
any conditions if this Court grant him bail. The Public
Prosecutor seriously opposed the bail application. The
Public Prosecutor submitted that the petitioner is involved
in other cases also. The Public Prosecutor also submitted
that the petitioner may not be released on bail at this
stage. It is true that the allegations against the petitioner
BAIL APPL. NO. 3465 OF 2022
are very serious. But the petitioner is in custody from
16.03.2022 onwards. The apprehension of the prosecution
is that if the petitioner is released on bail, he will commit
similar offences. If any case is registered against the
petitioner subsequent to this order, the prosecution is free
to file an application before the jurisdictional Court to
cancel this bail and the jurisdictional Court will pass
appropriate orders in it, even though the bail order is
passed by this Court. There can be a direction to the
petitioner to appear before the Investigating Officer on all
Mondays, Wednesdays and Fridays till final report is filed.
During the bail period, if there is any criminal activity on
the part of the petitioner, I once again make it clear that
the Investigating Officer is free to file an application for
cancellation of the bail. With the above conditions, this bail
application can be allowed.
5. Moreover, it is a well accepted principle that the
bail is the rule and the jail is the exception. The Hon'ble
BAIL APPL. NO. 3465 OF 2022
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 in as much
as the grant of bail is the rule and refusal is the exception
so as to ensure that the accused has the opportunity of
securing fair trial.
6. 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. Petitioner shall be released on bail
on 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 jurisdictional Court.
2. The petitioner shall appear before
the Investigating Officer for interrogation
BAIL APPL. NO. 3465 OF 2022
as and when required. The petitioner 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/her from
disclosing such facts to the Court or to any
police officer.
3. Petitioner shall not leave India
without permission of the jurisdictional
Court.
4. Petitioner shall not commit an
offence similar to the offence of which he is
accused, or suspected, of the commission
of which he is suspected.
5. The petitioner shall appear before
the Investigating Officer on all Mondays,
Wednesdays and Fridays at 10 am till final
BAIL APPL. NO. 3465 OF 2022
report is filed.
6. If any of the above conditions are
violated by the petitioner, the jurisdictional
Court can cancel the bail in accordance to
law, even though the bail is granted by this
Court.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
np
BAIL APPL. NO. 3465 OF 2022
APPENDIX OF BAIL APPL. 3465/2022
PETITIONER'S ANNEXURES:
Annexure A1 CERTIFIED COPY OF THE ORDER DATED
19.03.2022 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, KAKKANAD IN C.M.P NO.
638 OF 2022 IN CRIME NO. 197 OF 2022 OF
THADIYITTAPARAMBU POLICE STATION
Annexure A2 TRUE COPY OF THE E COURT STATUS OF THE
PROCEEDINGS IN CRL MC NO.722 OF 2022 OF
DISTRICT &SESSIONS COURT ERNAKULAM DATED
29.03.2022
Annexure A3 CERTIFIED COPY OF THE ORDER DATED
08.04.2022 OF ADDITIONAL DISTRICT &
SESSIONS COURT ERNAKULAM (FOR THE CASES
RELATING TO ATROCITIES & SEXUAL VIOLENCE
AGAINST WOMEN AND CHILDREN) IN C.M.P
NO.224 OF 2022
Annexure A4 CERTIFIED ORDER DATED 27.04.2022 OF THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE IN
C.M.P NO. 252 OF 2022 IN CRIME NO. 197 OF
2022 OF THADIYITTAPARAMBU POLICE STATION
Annexure A5 TRUE COPY OF THE PETITIONER IDENTITY CARD
FOR PERSONS WITH DISABILITIES
RESPONDENT'S ANNEXURES: NIL
