Abdul Basheer vs State Of Kerala

Raja Vijayaraghavan V, J

This application is filed under Section 439 of the Cr.P.C.

The applicant herein is the accused in S.C. No.600/2018 on the files of the Sessions Court (Marad Cases), Kozhikode. In the aforesaid case he

faces indictment for having committed the offences punishable under Sections 302, 342, 447, 449, 354, 392, 325 and 201 of the Indian Penal Code.

In essence, the prosecution allegation is that, on 22.05.2017 at about 2.00 a.m, the applicant tied the hands and legs of his deceased wife and

smothered her to death. When the minor child woke up, the applicant is alleged to have thrown the child to the ground and strangulated her as well.

The applicant was arrested on 25.5.2017.

The applicant had earlier approached this Court seeking regular bail and by order dated 4.12.2017 in B.A.No.7968 of 2017, he was granted bail

after prolonged incarceration. While granting bail, the fact that the applicant is a disabled person with 50% disability and that he had residual paralysis

with a flail at the right lower limb was also considered. One of the conditions imposed required the applicant to refrain from involving in any crimes

while on bail.

Investigation was completed and final report was laid by the Investigating agency.

While so, Crime No.693 of 2019 of the Kozhikode Town Police Station was registered against the applicant for allegedly committing offence under

Section 379 of the Indian Penal Code. The investigating officer moved the Court of Session seeking cancellation of bail. By order dated, 2.10.2020, the

learned Sessions Judge proceeded to cancel the bail and remand the applicant to judicial custody. He has been in custody since then. Though the order

passed by the Court of Session was challenged before this Court, the challenge was repelled in Crl. M.C. No.5736/2020.

Sri. Sasith Panicker, the learned counsel appearing for the applicant, submitted that the applicant has been in custody from 02.10.2020. According to

the learned counsel, the applicant is a disabled man and the allegation that he had committed theft of a scooter cannot be believed. According to the

learned counsel, the applicant has since been granted bail by the jurisdictional court in the said crime. His innocence can be proved only at the stage of

trial and it will be abhorrent to the principles of justice to keep an undertrial in prison on such cooked up and frivolous allegations.

Learned Public Prosecutor has very strenuously opposed the prayer. It is submitted that the applicant got himself involved in a very grave crime and

while on bail, he has violated the bail conditions and got involved in yet another crime. It is further submitted that if he is released on bail, there is every

likelihood that the applicant would commit other offences as well.

I have considered the submissions advanced.

In G.Narasimhulu v. Public Prosecutor[AIR 1978 SC 429], it was held by the Hon’ble Supreme Court that the requirement for bail is to secure

the attendance of the prisoner and it is the duty of the court to admit the accused to bail, where ever practical, unless there are strong grounds for

supposing that such person will not appear to take the trial. In Sanjay Chandra v. CBI [(2012) 1 SCC 40], it was held that it would be quite contrary to

the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been

convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty,

save in the most extraordinary circumstances. Imprisonment before conviction has a substantial punitive content and it would be improper for any

Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not. It would also be opposed to all

tenets of law to refuse bail to an under trial for the purpose of giving him a taste of imprisonment as a lesson. The fundamental postulate of criminal

jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty cannot be lost sight of. The

Hon'ble Apex Court in Dataram Singh v. State of Uttar Pradesh [2018 (3) SCC 22], had observed that though the grant or denial of bail is entirely the

discretion of the Judge, in the facts and circumstances of each case, the exercise of judicial discretion has been circumscribed by the decisions of the

Apex Court as well as this Court. The jurisdiction must be exercised judiciously, in a humane manner and compassionately without being carried away

by the severity of the allegations, submits the learned counsel. The Apex Court in State of Kerala v. Raneef [(2011) 1 SCC 784] had held that when

under-trial prisoners are detained in jail custody for an indefinite period, Article 21 of the Constitution is violated.

Having considered the submissions in the light of the principles above, I am of the view that the further incarceration of the applicant is quite

unwarranted. It is true that the applicant had violated the bail conditions and had involved himself in yet another crime. However, he has been granted

bail in the said crime by the jurisdictional court. The allegation against the applicant is that he had committed theft of a vehicle belonging to a disabled

man. The applicant asserts that he was falsely implicated in the said crime. The truthfulness or otherwise of the allegations will be revealed only after

trial. The applicant has undergone a substantial period of incarceration and he is a disabled man as well. In that view of the matter, further detention of

the applicant, in the facts and circumstances, does not appear to be necessitous. He can be granted bail by imposing appropriate conditions.

Resultantly this application will stand allowed. However, it shall be subject to the following conditions:

The applicant shall be released on bail on his 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 court having jurisdiction.

The applicant shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence.

He shall not commit any offence while he is on bail. Involvement in any similar offence will entail immediate cancellation of bail and the jurisdictional court may

pass appropriate orders.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and

pass appropriate orders in accordance with the law.