Badusha Iqbal vs State Of Kerala
2024 Latest Caselaw 29765 Ker

Kerala High Court

Badusha Iqbal vs State Of Kerala on 22 October, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                                 2024:KER:78274

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
               THE HONOURABLE MR.JUSTICE C.S.DIAS
   TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946

                   BAIL APPL. NO. 7283 OF 2024

   CRIME NO.886/2024 OF THOPPUMPADY POLICE STATION, ERNAKULAM


PETITIONER:
          BADUSHA IQBAL,
          AGED 28 YEARS
          RESIDING AT KANDHATHIL PARAMBILL HOUSE,
          KADHEABHAGHAM, PALLURUTHY, KOCHI.682006

          BY ADV R.NIKHIL

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

    2     THE STATION HOUSE OFFICER, THOPPUMPADY POLICE
          STATION,
          THOPPUMPADY, REPRESENTED BY PUBLIC PROSECUTOR,HIGH
          COURT OF KERALA-682031


OTHER PRESENT:
          SR PP SMT SETHA S

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.10.2024, ALONG WITH BAIL APPL..7528/2024, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
 B.A.Nos.7283 & 7528/2024

                                       -:2:-

                                                         2024:KER:78274




                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                     THE HONOURABLE MR.JUSTICE C.S.DIAS
      TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946

                           BAIL APPL. NO. 7528 OF 2024

     CRIME NO.886/2024 OF THOPPUMPADY POLICE STATION, ERNAKULAM


PETITIONER:
                AFZER A,
                AGED 32 YEARS
                S/O ASHRAF, H.NO. 23/904 A, NIKARTHIL PARAMBU,
                THANGAL NAGAR, PALLURUTHY, P.O, KOCHI KERALA, PIN -
                682006

                BY ADVS.ANIL K.MUHAMED
                         B.S.SURAJ KRISHNA
                         KRISHNAKUMAR G.
                         AJIN SALAM
                         MUHAMMED AFRIN NUHMAN T.T.


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


OTHER PRESENT:
                SR PP SRI C S HRITHWIK

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.10.2024, ALONG WITH BAIL APPL..7283/2024, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
 B.A.Nos.7283 & 7528/2024

                                             -:3:-

                                                                     2024:KER:78274

                           COMMON ORDER

Dated this the 22nd day of October,2024

The applications are filed under Section 483 of

the Bharatiya Nagarik Suraksha Sanhita, 2023, by the

accused Nos.1 & 2 in Crime No. 886/2024 of the

Thoppumpady Police Station, Ernakulam, which is

registered against them for allegedly committing the

offences punishable under Sections 370 and 420 read

with Section 34 of the Indian Penal Code, 1860 (in

short, 'IPC'). The first petitioner was arrested on

07.08.2024, and the second petitioner was arrested on

09.08.2024. Since the two cases arise out of the same

crime, they are consolidated, jointly heard, and are

being disposed of by this common order.

2. The prosecution case, in brief, is that: the

accused, in furtherance of their common intention,

represented to be working as agents of the Chinese B.A.Nos.7283 & 7528/2024

2024:KER:78274

company named, Yinglong in Lavos. Accordingly, they

offered a job to the first informant at Lovos, and, on

14.05.2024, the first accused received Rs.50,000/- from

the first informant. As per the instructions of the

accused Nos.2 & 3, the first informant and five others

were sold to a Chinese company for Rs.4,00,000/-.

After the first informant and five others went to Lavos,

they were mentally and physically harassed and made

to live in inhuman conditions. Thus, the accused have

committed the above offences.

3. Heard; Sri. R.Nikhil and Sri.Anil K.Muhamed,

the learned counsel appearing for the petitioners and

Sri. C. S. Hrithwik and Smt. Seetha S., the learned

Senior Public Prosecutors.

4. The learned counsel for the petitioners

submitted that the petitioners are totally innocent of

the accusations levelled against them. There is no B.A.Nos.7283 & 7528/2024

2024:KER:78274

material to substantiate that the petitioners have

committed the above offences. The Investigating

Officer has deliberately incorporated Section 370 of

the IPC to see that the petitioners are arrested and

incarcerated. In any given case, the petitioners have

been in judicial custody for the last more than 70 days,

the investigation in the case is practically complete,

and recovery has been effected. The petitioners have

no criminal antecedents in respect of a similar offence.

Hence, the applications may be allowed.

5. The learned Public Prosecutors opposed the

applications. The Investigating Officer has filed bail

objection reports, inter-alia, contending that there is

one crime registered against the first accused and four

crimes registered against the second accused. If the

petitioners are enlarged on bail, there is every

likelihood of them intimidating the witnesses and B.A.Nos.7283 & 7528/2024

2024:KER:78274

tampering with evidence. Hence, the applications may

be dismissed.

6. The prosecution allegation is that, the

petitioners had induced the first informant and five

others to pay them Rs.50,000/- each on the assurance

of securing employments in Lavos. However, the

accused took the six persons to Lavos and sold them to

a Chinese company for Rs.4,00,000/- each, who made

them do illegal activities and live in inhuman

conditions. The fact remains that the petitioners have

been in judicial custody for the last more than 70 days,

the investigation in the case is practically complete,

and recovery has been effected. Furthermore, I find

that the antecedents alleged against the petitioners are

all for minor offences and not for a offence under

Section 370 of the IPC.

7. Recently, in Manish Sisodia v. Directorate B.A.Nos.7283 & 7528/2024

2024:KER:78274

of Enforcement [2024 INSC 595] the Honourable

Supreme Court has observed that, over a period of

time, the trial courts and the High Courts have

forgotten a very well-settled principle of law that bail is

not to be withheld as a punishment. From its

experience, it appears that the trial courts and the

High Courts attempt to play safe in matters of grant of

bail. The principle that bail is the rule and refusal is an

exception is, at times, followed in breach. On account

of non-grant of bail even in straight forward open and

shut cases, the Honourable Supreme Court is flooded

with huge number of bail petitions thereby adding to

the huge pendency. It is high time that the trial courts

and the High Courts recognize the principle that "bail

is the rule and jail is an exception.

8. Similarly, in Jalaluddin Khan v Union of

India [2024 INSC 604] has observed in the following B.A.Nos.7283 & 7528/2024

2024:KER:78274

lines:

"21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the

rights guaranteed under Article 21 of our Constitution."

9. After bestowing my anxious consideration to

the facts, the rival submissions made across the Bar,

and the materials placed on record, particularly on

considering the fact that the petitioners have been in B.A.Nos.7283 & 7528/2024

2024:KER:78274

judicial custody for the last more than 70 days, that the

investigation in the case is practically complete, and

recovery has been effected, I am of the view that the

petitioners' further detention is unnecessary. Hence, I

am inclined to allow the bail applications.

In the result, the applications are allowed, by

directing the petitioners to be released on bail on them

executing a bond for Rs.1,00,000/- (Rupees One lakh

only) each 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 petitioners shall appear before the Investigating Officer every second and fourth Saturday between 9 a.m. and 11 a.m till the charge-sheet is filed. After the filing of the charge-sheet, they shall appear before the Investigating Officer on every third Saturday between 9 a.m. and 11 a.m till the conclusion of B.A.Nos.7283 & 7528/2024

2024:KER:78274

the trial in Crime No.886/2024;

(ii) The petitioners 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iii)The petitioners shall not commit any offence while they are on bail;

(iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passport, they shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) 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 B.A.Nos.7283 & 7528/2024

2024:KER:78274

on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the jurisdictional court.

(vii) 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 petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State(NCT of Delhi) and Anr.[2020 (1) KHC 663].

Sd/-

                                              C.S.DIAS,JUDGE
DST/22.10.24                                                           //True copy//

                                                                       P.A. To Judge