Akshay Kumar @ Kithu and Sandeep S. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 ``` ## **`BAIL APPL. NO. 2204 OF 2024`** ``` CRIME NO.170/2024 OF Karunagapally Police Station, Kollam ``` ## **`PETITIONER/S:`** ``` 1AKSHAY KUMAR @ KITHU, AGED 18 YEARS S/O SHIVA KUMAR, CHARUVILA PUTHENVEEDU, PAANKONAM, MUKHATHALA PO, THRIKKOVILVATTOM, KOLLAM, PIN - 691577 2SANDEEP.S , AGED 23 YEARS S/O SANTHOSH KUMAR, VARIKOLIT LAKSHAMVEEDU, ADINADU NORTH PO, KARUNAGAPPALLY NOW RESIDING AT KATTOOR VEETTIL, CHANGANKULANGARA, OCHIRA PO, KOLLAM, PIN - 690526 ``` ``` BY ADVS. C.R.JAYAKUMAR NOBEL RAJU ALEENA JOSE ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** ``` 2THE STATION HOUSE OFFICER, KARUNAGAPPALLY POLICE STATION, KOLLAM, PIN - 690518 ``` ## **`OTHER PRESENT:`** ## **`Sr PP Smt Seetha S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.2204 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.2204 of 2024** ## **-----------------------------------** ## **Dated this the 12[th] day of April, 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.170/2024 of the Karunagappally Police Station, Kollam, registered against the accused (five in number, out of whom one is a minor) for allegedly committing the offences punishable under Secs.143, 147, 148, 341, 294(b), 323, 324 and 302 r/w Sec.149 of the Indian Penal Code (in short, 'IPC'). The petitioners were arrested on 28.01.2024. 2. The essence of the prosecution case is that: on 28.01.2024, at around 00.15 hours, the accused, in prosecution of their common intention and out of their previous animosity towards one Akhil (deceased), formed themselves into an unlawful assembly and the 1[st] accused indiscriminately stabbed the deceased with a knife and 3 BA No.2204 of 2024 caused fatal injuries to him. The deceased lost his life on 30.01.2024 at the Kollam Medicity Hospital. The other accused aided the 1[st] accused to commit the above offences. Thus, the accused have committed the above offences. 3. Heard; Sri.C.R.Jayakumar, the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have been falsely implicated in the crime. A reading of Annexure A1 FIR would substantiate that the offence under Section 302 of the IPC will not be attracted against the petitioners because it was the 1[st] accused who inflicted the fatal injury on the deceased. In any given case, the petitioners have been in judicial custody since 28.01.2024, the investigation in the case is practically complete and recovery has been effected. Moreover, the 4 BA No.2204 of 2024 second accused has been enlarged on bail by this Court as per order in BA No.2864/2024. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that the accused had hatched a conspiracy and in prosecution of their common intention, the 1[st] accused murdered the deceased. If the petitioners are released on bail, there is every likelihood of them committing similar offences. Hence, the application may be dismissed. 6. On a scrutiny of Annexure A1 FIR and the materials placed on record, it can be gathered that the specific overt act regarding committing the murder of the deceased is alleged against the 1[st] accused. The overt act alleged against the petitioners is that they assisted the 1[st] accused 5 BA No.2204 of 2024 to commit the murder. The fact remains that the petitioners have been in judicial custody since 28.01.2024, the investigation in the case is almost 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 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 6 BA No.2204 of 2024 circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 9. 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. 10. On a consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on comprehending the fact that it was the 1[st] accused who allegedly committed the murder of the deceased, the specific overt act alleged against the petitioners is that they aided the 1[st] accused to commit the above offence of murder, the investigation in the case is practically complete and recovery has been effected, and further that the second accused has already been enlarged 7 BA No.2204 of 2024 on bail as per the order in BA No.2864/2024, I am of the view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. 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) 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; 8 BA No.2204 of 2024 (iii) The petitioners shall not commit any offence 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) The petitioners shall not leave the territorial jurisdiction of the Court of Session, Kollam, without previous permission of the jurisdictional court. (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the applications for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. 9 BA No.2204 of 2024 (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 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** sks/12.04.24 10 BA No.2204 of 2024