Adithyan @ Kannan and Sivahari @ Kichu v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 28[TH] DAY OF MAY 2024 / 7TH JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 4272 OF 2024` ``` CRIME NO.490/2024 OF KOTTIYAM POLICE STATION, KOLLAM ``` ## `PETITIONERS:` ``` 1ADITHYAN @ KANNAN AGED 18 YEARS S/O BAIJU KARTHIKA, P K JUNCTION, THAZUTHALA VILLAGE, KOLLAM, PIN – 691020 2SIVAHARI @ KICHU AGED 18 YEARS S/O. HARILAL SHEEJA MANDIRAM, CHERIYELA CHERY, THRIKOVILVATTOM VILLAGE KOLLAM, PIN – 691020 BY ADVS.MANSOOR ALI BIJITH S.KHAN M.RIYAZ ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.4272/2024_ _-:2:-_ _Dated this the 28[th] day of May, 2024_ ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused Nos.12 & 13 in Crime No.490/2024 of the Kottiyam Police Station, Kollam, which is registered against the accused (14 in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 120(b), 323, 427, 452, 435, 506 read with Section 149 of the Indian Penal Code, 1860 (in short, ‘IPC’) and Section 27 of the Arms Act, 1959. The petitioners were arrested on 05.05.2024. 2. The gist of the prosecution case is that: on 02.05.2024, at around 22.15 hours, the accused, in prosecution of their common intention, formed themselves into an unlawful assembly and trespassed into the house of the de-facto complainant. They pushed down a motorcycle and destroyed it with a _B.A.No.4272/2024_ _-:3:-_ sword. Then, the accused trespassed into the house of the de-facto complainant, abused his wife in vulgar language and also destroyed the home appliances. Subsequently, they set fire to the motorcycle and caused a loss of Rs.75,000/- to the de-facto complainant. Thus, the accused have committed the above offences. 3. Heard; Sri. Mansoor Ali, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. A reading of Annexure-A1 First Information Report [FIR] would substantiate that the non-bailable offences are not attracted against the petitioners. The Investigating Officer has deliberately incorporated Section 149 of the IPC to deny bail to the petitioners. In any given _B.A.No.4272/2024_ _-:4:-_ case, the petitioners have been in judicial custody since 05.05.2024, the investigation in the case is practically complete, so far as it relates to the petitioners, and recovery has been effected. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioners are released on bail, there is a likelihood of them tampering with the evidence. Nonetheless, he did not dispute the fact that the specific overt act of causing mischief in the property of the de-facto complainant is attributed to the first accused. 6. On an evaluation of the materials, it can be gathered that the principal overt act is alleged against the first accused for causing mischief and loss to the de-facto complainant. The allegation against the _B.A.No.4272/2024_ _-:5:-_ petitioners is that they have trespassed into the house of the de-facto complainant and assisted the first accused in committing the offences. The fact remains that the petitioners have been in judicial custody for the last 22 days, the investigation in the case is practically complete, and recovery has been effected. 7. 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. 8. 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 _B.A.No.4272/2024_ _-:6:-_ 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. 9. 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. 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioners have been in judicial custody for the last 22 days, the investigation in the case is complete, and recovery has been effected, I am of the definite view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow _B.A.No.4272/2024_ _-:7:-_ the bail application. In the result, the application is 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 on every Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer as and when required; - (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 _B.A.No.4272/2024_ _-:8:-_ ## 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 passports, they shall file affidavits 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 on the same, in accordance with law. - (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. - (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 _B.A.No.4272/2024_ _-:9:-_ as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. Sd/- ## **C.S.DIAS,JUDGE** DST/28.05.24 //True copy// P.A. To Judge