Kerala High Court

Ishak.K vs State Of Kerala on 23 April, 2024

Author: C.S.Dias

Bench: C.S.Dias

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
   TUESDAY, THE 23RD DAY OF APRIL 2024 / 3RD VAISAKHA, 1946
                    BAIL APPL. NO. 3252 OF 2024
        CRIME NO.388/2022 OF CHOKLI POLICE STATION, KANNUR
AGAINST THE ORDER/JUDGMENT DATED 09.04.2024 IN CRMC NO.687 OF
2024 OF DISTRICT COURT & SESSIONS COURT,THALASSERY
PETITIONER/ACCUSED:

           ISHAK.K
           AGED 34 YEARS
           S/O. ISMAIL, VALIYA VILAKAM, T.C. NO.45/122,
           BHEEMAPALLI, VALAKKADAV.P.O, MUTTUTHARA VILLAGE,
           THIRUVANANTHAPURAM DISTRICT, PIN - 695008

           BY ADVS.
           CIBI THOMAS
           G.KRISHNAKUMARI



RESPONDENTS:

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

    2      THE STATION HOUSE OFFICER
           CHOKLI POLICE STATION, CHOKLI. P.O,
           KANNUR DISTRICT, PIN - 670672


OTHER PRESENT:

           SR PP T V NEEMA




     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A. No.3252 of 2024
                             2




          Dated this the 23rd day of April, 2024

                         ORDER

The application is filed under Section 439 of the

Code of Criminal Procedure, 1973, by the third accused

in Crime No.388/2022 of the Chokli Police Station,

Kannur, registered against the accused for allegedly

committing the offences under Sections 392, 413 and

201 r/w Section 34 of the Indian Penal Code. The

petitioner was arrested on 22.01.2024

2. The essence of the prosecution case, is that; on

18.8.2022, at around 10.30 hours, while the de facto

complainant was walking along the road at Peringalam,

the accused 1 and 2, in furtherance of their common

intention, had snatched a 3 sovereign of gold chain of

the de facto complainant. They sold the said chain to the

third accused. Thus, the accused have committed the

above offences.

3. Heard; Sri. Cibi Thomas, learned counsel

appearing for the petitioner and Smt. Neema T.V. the

learned Senior Public Prosecutor.

4. 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. A reading of the

First Information Report would substantiate that the

petitioner has no involvement in the snatching of the

gold chain. The only allegation against the petitioner is

that he purchased the gold chain from the accused 1 and

2. The petitioner is a fisherman by profession and he is

the sole breadwinner of his family. In any given case,

the petitioner has been in judicial custody for the last 90

days, the investigation in the case is complete and the

final report has been laid. Therefore, the petitioner's

further detention is unnecessary. Hence, the

application may be allowed.

5. The learned Public Prosecutor opposed the

application. She submitted that the petitioner is a

person with criminal antecedents. The petitioner is

involved in other crimes of similar nature. If the

petitioner is released on bail, there is a likelihood of him

committing a similar offence. Hence, the application

may be dismissed. Nonetheless, she did not dispute the

fact that the investigation in the case is complete and the

final report has been laid.

6. On an evaluation of the allegations in the First

Information Report and the Final report laid by the

Investigating Officer, it can be gathered that it was the

accused 1 and 2, who allegedly robbed the gold chain of

the de facto complainant. The overt act alleged against

the petitioner is that he consciously purchased the gold

chain. The fact remains that the petitioner was arrested

on 22.1.2024, the investigation in the case is complete

and the final report has been laid.

7. Even though the petitioner moved a similar

application for bail before the Court of Session,

Thalassery, the same was dismissed by Annexure-I order,

principally on the ground that the petitioner has criminal

antecedents.

8. 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.

9. In Dataram Singh v. State of U.P., [(2018) 3

SCC 22] the Honourable Supreme Court observed that

grant of bail is the 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.

10.In State of Kerala v. Raneef, [(2011) 1 SCC

784], the Honourable Supreme Court has declared 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.

11. In Hussainara Khatoon (I) v. Home Secy.,

State of Bihar [(1980) 1 SCC 81], the Honourable

Supreme Court while dealing with a case of under trials,

who suffered long incarceration, held that the procedure

that keeps large number of people behind the bars

without trial for long is unreasonable and unfair, and is

not in conformity with the mandate of Article 21 of the

Constitution of India.

12. The principle that bail is the rule and jail is an

exception is the touch stone of Article 21 of the

Constitution of India. After 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.

13. On an anxious consideration of the facts, the

rival submissions made across the Bar, and the

materials placed on record, particularly considering the

fact that the petitioner has been in judicial custody for

the last 90 days, the investigation in the case is

complete and the final report has been laid,

notwithstanding the fact that the petitioner allegedly has

criminal antecedents, I am of the 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 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 completion of trial in Crime

No.388/2022. 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 not leave the State of Kerala

till the conclusion of the trial in the present case.

(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.