Akhil 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. 4247 OF 2024 ``` ``` CRIME NO.791/2023 OF ARANMULA POLICE STATION, PATHANAMTHITTA AGAINST THE ORDER DATED 17.05.2024 IN CRMP NO.3075 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, PATHANAMTHITTA / II ADDL.M.A.C.T. ``` ## **`PETITIONER/ACCUSED:`** ``` AKHIL AGED 28 YEARS S/O. SAJI PULLOLIKKAL MURUPPEL EDAPPARIYARAM P.O. ELANTHOOR VILLAGE KOZHENCHERRY TALUK PATHANAMTHITTA DISTRICT, PIN - 689643 ``` ``` BY ADV AJEESH K.SASI ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SMT NEEMA T V SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.4247 of 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 second accused in Crime No.791/2023 of the Aranmula Police Station, Pathanamthitta, registered against the accused (three in number) for allegedly committing the offences under Sections 341, 324, 236, 506(ii), 427 and 307 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 30.04.2024. 2. The crux of the prosecution case is that; on 29.08.2024, at 17.30 hours, the accused, in furtherance of their common intention, to murder a person named Aromal, hit the scooter ridden by the defacto complainant with Aromal and one Anandu (injured) on the pillion, by hitting the scooter by a wooden log. When Aromal attempted to get up from the ground, the first **B.A. No.4247 of 2024** ``` 3 ``` accused hacked on his head with a chopper. It is only because he warded off the attack, he suffered a deep wound on the left wrist. When the defacto complainant attempted to prevent the Aromal from being attacked, the first accused shouted to the other accused to murder him. Then, the accused 2 and 3 hit the defacto complainant and threw stones on Aromal and Anandu, causing injuries to them. Thus, the accused have committed the above offences. 3. Heard; Sri. Ajeesh K. Sasi., learned counsel appearing for the petitioner and Smt. Neema. T.V. the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of FIR would substantiate that there is no specific overt act alleged against the petitioner. It was the first accused who inflicted grievous injuries on Aromal so as to attract the offence under Section 307 of the IPC. In any given case, **B.A. No.4247 of 2024** ``` 4 ``` the petitioner has been in judicial custody for the last 28 days, the investigation in the case is practically complete, and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is released on bail, it would affect the investigation of the crime. Nonetheless, she did not dispute the fact that the specific overt act, so as to attract the offence under Section 307, is attributed against the first accused. 6. On an evaluation of the materials placed on record, it can be gathered that the overt act alleged against the petitioner is that, with the third accused threw stones on Aromal and Anandu. The specific overt act, so as to attract the offence under Section 307, is attributed against the first accused, who attacked Aromal with a sword. However, that is a matter to be **B.A. No.4247 of 2024** ``` 5 ``` investigated and decided at the time of the trial. Furthermore, I do not find that the petitioner has any criminal antecedents. 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 **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. 9. The principle that bail is the rule and jail is an **B.A. No.4247 of 2024** ``` 6 ``` 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 there is no specific overt act alleged against the petitioner so as to attract the offence under Section 307 of the IPC, that the petitioner has been in judicial custody for the last 28 days, that the investigation in the case is practically complete, and that the recovery has been effected, I am of the definite view that the petitioner’s further detention is not necessary. Hence, I am inclined to allow the bail application. 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 ``` 7 ``` ## **B.A. No.4247 of 2024** 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 petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required; (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 him 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; ``` 8 ``` ## **B.A. No.4247 of 2024** (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) 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. (viii) 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 ``` 9 ``` ## **B.A. No.4247 of 2024** 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].** mtk/28.05.24 **C.S.DIAS, JUDGE**