Kerala High Court
Muhammed Afsal vs State Of Kerala on 7 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
B.A.No.1222 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946
BAIL APPL. NO. 1222 OF 2025
CRIME NO.78/2025 OF VADAKARA POLICE STATION, KOZHIKODE
PETITIONER(S)/3RD ACCUSED:
MUHAMMED AFSAL
AGED 39 YEARS
S/O KUNHIMOHAMMED VALIYAPEEDIYEKKAL,
VALIYAPEEDIYEKKAL HOUSE, KARIPARAMBU,
PANTHARANGADI.P.O., TIRURANGADI, MALAPPURAM,
PIN - 676306
BY ADVS.
A.RAJASIMHAN
VYKHARI.K.U
EESA FARHAN P.
SONU K. CHACKO
RESPONDENT(S)/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
BY ADV.
SRI.HRITHWIK C.S., SENIOR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
07.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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P.V.KUNHIKRISHNAN, J
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B.A.No.1222 of 2025
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Dated this the 07th day of February, 2025
ORDER
This Bail Application is filed under Section 482 of
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
2. The petitioner is an accused in Crime
Nos.78/2025 of Vadakara Police Station, Kozhikode. The above
case is registered against the petitioner alleging offence
punishable under Section 420 of the Indian Penal Code.
3. The prosecution case is that the accused
promised the defacto complainant to arrange Hajj pilgrim and
the accused received huge amount from the defacto
complainant. It is the case of the prosecution that the accused
failed to facilitate the same. Hence, it is alleged that the
accused committed the offence.
4. Heard the learned counsel appearing for the
petitioner and the learned Public Prosecutor.
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5. The counsel for the petitioner submitted that,
due to some technical problem the defacto complainant was
not able to sent for Hajj pilgrim. The counsel takes me through
the documents produced along with the bail application. The
counsel submitted that the petitioner is trying to settle all the
disputes with the defacto complainant. The counsel also
submitted that the petitioner will co-operate with the
investigation and he is ready to abide any conditions imposed
by this Court, if this Court grant him bail.
6. The Public Prosecutor opposed the bail
application. The Public Prosecutor submitted that, in addition
to this case, other cases are also registered against the
petitioner for the same set of facts.
7. This Court considered the contentions of the
petitioner and the Public Prosecutor. It seems that the
allegation is that, after paying the amount, the petitioner was
not able to take the defacto complainant for Hajj pilgrim. A
perusal of the bail application would show that the petitioner is
trying to settle all these issues. In such circumstances, I think,
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the custodial interrogation of the petitioner is not necessary in
this case. Hence, the petitioner can be released on bail after
imposing stringent conditions.
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 bail
is the rule and refusal is the exception so as to ensure that the
accused has the opportunity of securing fair trial.
9. Recently the Apex Court in Siddharth v
State of Uttar Pradesh and Another [2021(5)KHC 353]
considered the point in detail. The relevant paragraph of the
above judgment is extracted hereunder.
"12. We may note that personal liberty is an important
aspect of our constitutional mandate. The occasion to
arrest an accused during investigation arises when
custodial investigation becomes necessary or it is a
heinous crime or where there is a possibility of
influencing the witnesses or accused may abscond.
Merely because an arrest can be made because it is
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lawful does not mandate that arrest must be made. A
distinction must be made between the existence of the
power to arrest and the justification for exercise of it.
(Joginder Kumar v. State of UP and Others (1994 KHC
189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ
97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is
made routine, it can cause incalculable harm to the
reputation and self-esteem of a person. If the
Investigating Officer has no reason to believe that the
accused will abscond or disobey summons and has, in
fact, throughout cooperated with the investigation we fail
to appreciate why there should be a compulsion on the
officer to arrest the accused."
10. In Manish Sisodia v. Central Bureau of
Investigation [2023 KHC 6961], the Apex Court observed
that, even if the allegation is one of grave economic offence, it
is not a rule that bail should be denied in every case.
Considering the dictum laid down in the above
decisions and considering the facts and circumstances of this
case, this bail application is allowed in the following manner:
1. The petitioner shall appear before the
Investigating Officer within two weeks from today
and shall undergo interrogation.
2. After interrogation, if the Investigating
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Officer propose to arrest the petitioner, he shall be
released on bail on executing a bond for a sum of
Rs.50,000/-(Rupees Fifty Thousand only) with two
solvent sureties each for the like sum to the
satisfaction of the arresting officer concerned.
3. The petitioner shall appear before the
Investigating Officer for interrogation 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 from disclosing such facts to the
Court or to any police officer.
4. Petitioner shall not leave India without
permission of the jurisdictional Court.
5. 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.
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6. 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
petitioner even while the petitioner is on bail as
laid down by the Hon'ble Supreme Court in
Sushila Aggarwal v. State (NCT of Delhi) and
another [2020 (1) KHC 663].
7. If any of the above conditions are violated
by the petitioner the jurisdictional Court can cancel
the bail in accordance to law, even though this bail
is granted by this Court. The prosecution and the
victim are at liberty to approach the jurisdictional
Court to cancel the bail, if any of the above
conditions are violated.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
DM
