Ajayakumar @ Ajayan @ Kannan and Devasia Varghese @ Soji v. State of Kerala and Station House Officer, Thiruvalla Police Station

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 1655 OF 2024`** ## **`CRIME NO.1629/2023 OF THIRUVALLA POLICE STATION,`** ## **`PATHANAMTHITTA`** ## **`PETITIONERS/ACCUSED:`** - **`1 AJAYAKUMAR @AJAYAN@KANNAN AGED 29 YEARS S/O ARJUNAN, THELLIKKUNNEL HOUSE,CHIRAYILKULAM,ANJILITHANAM P.O,KUNNAMTHANAM, MALLAPPALLY, PIN - 689582`** - **`2 DEVASIA VARGHESE@SOJI AGED 47 YEARS S/O BABYCHAN,PUTHENPURAYKAL HOUSE, KARUKACHAL CHANGANASSERRY, NOW RESIDING AT THE RENTED HOUSE OF MATHEW,MYLAMANNIL HOUSE,BACK OF KINFRA PARK,KUNNAMTHANAM P.O, MALLAPPALLY, PIN - 689581 BY ADVS. T.P.PRADEEP P.K.SATHEES KUMAR R.K.PRASANTH MINIKUMARY M.V. JIJO JOSEPH`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER THIRUVALLA POLICE STATION, THIRUVALLA.P.O, PIN - 689101`** ``` BY ADV SMT. NEEMA T. V. – SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.1655 OF 2024 ``` ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 1655 OF 2024 ------------------------------------------------------Dated this the 6[th] day of March, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the accused 3 and 4 in Crime No.1629/2023 of the Thiruvalla Police Station, Pathanamthitta, registered against the accused (eight in number) for allegedly committing the offences punishable under Sections 143, 144, 147, 148, 452, 294(b), 506, 341, 326 and 307 read with Section 149 of the Indian Penal Code. The petitioners were arrested on 27.01.2024 and 30.01.2024, respectively. 2. The gist of the prosecution case is that: on 09.12.2023 at around 22.30 hours, the accused in prosecution of their common intention and out of their previous animosity towards the friend of the defacto ``` 3 ``` ``` BAIL APPL. NO.1655 OF 2024 ``` complainant named, Maneesh, abused the defacto complainant in obscene language, and when one of his friends named, Jishnu attempted to intervene, the first accused hit him with a stone on his face resulting in a fracture. When the defacto complainant tried to restrain the accused from causing injuries to Jishnu, the first accused inflicted a cut injury on the neck and right hand of the defacto complainant. Then, the other accused hit on the door, windows and wall of the house of the defacto complainant with sword sticks and wrongfully restrained the defacto complainant and his friends. They threatened to kill the defacto complainant and his friends. Thus, the accused have committed the above offences. 3. Heard; Sri. T. P. Pradeep the learned counsel appearing for the petitioners and Smt. Neema T. V., the learned Public Prosecutor. ``` 4 ``` ``` BAIL APPL. NO.1655 OF 2024 ``` 4. The learned counsel appearing for the petitioners submitted that, petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of Annexure 1 FIR would substantiate that, there is no specific overt act alleged against the petitioners. In any given case, the offences under Sections 326 and 307 IPC cannot be attributed as against the petitioners. The petitioners have been in judicial custody since 27.01.2024 and 30.01.2024, respectively. The investigation in the case, so far as the petitioners are concerned, is practically complete and recovery has been effected. Hence, the petitioners may be released on bail. 5. The learned Public Prosecutor opposed the application. She contended that the investigation in the case is still in progress. She also submitted that the ``` 5 ``` ## **`BAIL APPL. NO.1655 OF 2024`** accused have caused grievous injuries to the defacto complainant and his friends. If the petitioners are released on bail, there is every likelihood of them intimidating the witnesses and tampering with the evidence. Moreover, the first accused is still at large. Hence, the application may be dismissed. 6. The prosecution allegation is that the accused 1 to 8 in prosecution of their common intention to murder the defacto complainant and his friends, caused grievous injuries to them. The fact remains that, the petitioners have been in judicial custody for the last more than one month. On an evaluation of the materials on record, it can be gathered that it is the first accused, who inflicted the cut injuries on the defacto complainant and his friends. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the Honourable Supreme Court has categorically held ``` 6 ``` ## **`BAIL APPL. NO.1655 OF 2024`** 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 a 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 a 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. 9. Subsequently, in **State of Kerala v. Raneef,** [(2011) 1 SCC 784], the Honourable Supreme Court has ``` 7 ``` ## **`BAIL APPL. NO.1655 OF 2024`** again held 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. 10. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly taking note of the fact that the petitioners have been in judicial custody for the last more than one month, that the investigation in the case, so far as the petitioners are concerned, is practically complete and the recovery has been effected, I am of the definite view that, the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioners to be released on bail on them ``` 8 ``` ## **`BAIL APPL. NO.1655 OF 2024`** 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, 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 for a period of one month or till the final report is laid, whichever is earlier. 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; ``` 9 ``` ## **`BAIL APPL. NO.1655 OF 2024`** - iii. The petitioners shall not commit any offence while they are on bail; - iv. The petitioners shall surrender their passport, if any, before the court below at the time of execution of the bond. If they have no passport, 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. ``` 10 ``` ## **`BAIL APPL. NO.1655 OF 2024`** 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 another** [2020 (1) KHC 663]. **Sd/C.S. DIAS JUDGE** BR ``` 11 ``` ## **`BAIL APPL. NO.1655 OF 2024`** ## **`APPENDIX OF BAIL APPL. 1655/2024`** ``` PETITIONER’S ANNEXURES Annexure 1TRUE COPY OF THE FIR NO. 1629/2023 OF THIRUVALLA POLICE STATION Annexure 2TRUE COPY OF THE MEDICAL RECORDS OF THE KOTTAYAM MEDICAL COLLEGE HOSPITAL Annexure 3TRUE COPY OF THE MEDICAL RECORDS OF THE PUSHPAGIRI MEDICAL COLLEGE HOSPITAL Annexure 4CERTIFIED COPY OF COMMON ORDER IN CRL.MP NO: 505 /2024 AND CRL.MP NO: 506 /2024 DATED 07.02.2024 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT , THIRUVALLA ``` ``` RESPONDENT’S ANNEXURES: NIL ```