Farookh Ali vs State Of Kerala

C.S.Dias, J

This application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.1497/2022 of Ernakulam Town North Police Station, Ernakulam, registered against him for allegedly committing the offences punishable under Sections 324 and 307 of the Indian Penal Code. The petitioner was arrested on 25.03.2024.

The crux of the prosecution case is that: on 03.12.2022, at around 23.00 hours, the accused, out of his previous animosity towards the defacto complainant, because she withdrew from their relationship, trespassed into her house and cut her with a chopper, and she sustained serious injuries. Thus, the accused has committed the above offences.

Heard; Sri. Vinay Vijay Shanker, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik., the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. The offence under Section 307 will not be attracted to the facts of the case. The Investigating Officer has deliberately incorporated the said offence to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody since 25.03.2024, the investigation in the case is complete, and the final report has been laid. By Annexure A4 order, the learned Sessions Judge had dismissed the petitioner’s application only on the ground that the petitioner had allegedly absconded. In fact, the petitioner was unaware of the crime. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the application. He submitted that the petitioner is a native of the state of Uttarakhand and does not have roots in the state of Kerala. If the petitioner is released on bail, there is every likelihood of him fleeing from justice. It was after a valiant search made by the Investigating Officer, the petitioner was arrested two years after the incident. Therefore, the petitioner may not be released on bail. Hence, the application may be dismissed.

The prosecution allegation against the petitioner is that he, out of his previous animosity towards the defacto complainant, who withdrew from their relationship, the petitioner chopped the defacto complainant, and she suffered serious injuries. Admittedly, the incident occurred as early as on 03.12.2022, but the petitoner was arrested only on 25.03.2024. The petitioner is also a native of the state of Uttarakhand.

In Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], the Hon’ble Supreme Court has categorically held that merely because a person does not have roots in a state, the same shall not be treated as a ground to deny bail to that person. But the courts should impose stringent conditions to enlarge an accused on bail, to ensure that the trial in the case is conducted. Therefore, I am of the view that merely because the petitioner does not have roots in the state of Kerala, he cannot be directed to face a trial as an under trial prisoner.

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.

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.

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.

The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. Once 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.

On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into consideration the law referred to above and the fact that the petitioner has been in judicial custody for the last more than two months, that the investigation in the case is practically complete, that the final report has been laid, and that the recovery has been effected, I am of the view that the petitioner’s further detention is unnecessary. Hence, I hold that the petitioner is entitled to be released on bail.

In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum, of whom one of the sureties shall be a native of the State of Kerala for the reason that the petitioner was allegedly absconding for nearly two years, 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 Tuesday and Saturday between 9 a.m. and 10 a.m till the conclusion of the trial in Crime No1497/2022;

(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 them 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 jurisdiction limits of the Court of Session, Ernakulam, without the previous permission of the jurisdictional court.

(vi) The petitioner shall furnish his present and permanent addresses, and his mobile phone number to the court below and the Investigating Officer;

(vii) 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.

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

(ix) 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].