Anoop Nambiar v. State of Kerala and The Station House Officer, Varandarappilly Police Station, Thrissur District

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 3351 OF 2024 ``` ``` CRIME NO.192/2024 OF VARANDARAPPALLY POLICE STATION, THRISSUR ``` ``` AGAINST THE ORDER IN CRMP NO.2480 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,IRINJALAKUDA ``` ## `PETITIONER:` ``` ANOOJ NAMBIAR AGED 20 YEARS S/O SIVADASAN, NEDUMBILLY HOUSE, MATTUMALA-NANDIPULAM DESOM, VARANDARAPPILLY VILLAGE, THRISSUR DISTRICT, PIN – 680312 ``` ``` BY ADV RAJESH CHAKYAT ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2THE STATION HOUSE OFFICER VARANDARAPPILLY POLICE STATION, THRISSUR DISTRICT, PIN – 680303 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3351/2024_ _-:2:-_ _Dated this the 23[rd] day of April, 2024_ ## **O R D E R** This is the second application filed by the petitioner under Section 439 of the Code of Criminal Procedure, 1973, who is the first accused in Crime No.192/2024 of the Varandarappally Police Station, Thrissur, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 341, 323, 324, 308 & 506 read with Section 34 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioner was arrested on 22.3.2024. 2. The essence of the prosecution case is that: on 20.3.2024, at around 22.15 hours, the accused, in furtherance of their common intention, wrongfully restrained the de-facto complainant and the first accused stabbed him on his chest which was blocked by him. But he suffered an injury on the left side of his _B.A.No.3351/2024_ _-:3:-_ abdomen. The second accused placed a knife on his neck and intimidated him. Whereas, the third accused kicked him. Thus, the accused have committed the above offences. 3. Heard; Sri. Rajesh Chakyat, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The Investigating Officer has deliberately incorporated Section 308 of the IPC to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody since 22.03.2024, the investigation in the case is complete and the recovery has been effected. Therefore, the petitioner’s further detention is not necessary. Hence, the petitioner may be released on bail 5. The learned Public Prosecutor opposed the _B.A.No.3351/2024_ _-:4:-_ application. He submitted that the first accused had inflicted grievous injury on the abdomen of the de-facto complainant. He made available the accident register-cum-wound certificate of the injured issued by the Taluk Hospital, Pudukkad dated 20.3.2024. He submitted that the investigation is in progress. If the petitioner is released on bail, it would hamper with the investigation. He prayed that the application be dismissed 6. On an evaluation of the materials on record, it can be gathered that the specific overt act alleged against the first accused is that he inflicted a stab injury on the abdomen of the de-facto complainant, which prima facie stands corroborated with the accident register cum wound certificate dated 20.03.2024. The petitioner’s earlier application for bail was dismissed by this Court by Annexure-2 order on the finding that the investigation was only at its _B.A.No.3351/2024_ _-:5:-_ preliminary stage. The fact remains that the petitioner has been in judicial custody for the last one month, 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 the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the _B.A.No.3351/2024_ ## _-:6:-_ 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. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the requirements under Article 21 of the Constitution of India. _B.A.No.3351/2024_ _-:7:-_ 11. The principle that bail is the rule and jail is an exception, which 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. 12. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on comprehending the fact that the petitioner has been in judicial custody since 22.03.2024, the investigation in the case is complete, the recovery has been effected, and, further, the petitioner does not have any criminal antecedents, I am of the view that the petitioner’s further detention is unnecessary. 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 _B.A.No.3351/2024_ _-:8:-_ 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 petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is filed. 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; _B.A.No.3351/2024_ _-:9:-_ - (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. - (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 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 Anr.** _-:10:-_ _B.A.No.3351/2024_ ## [2020 (1) KHC 663]. Sd/- ## **C.S.DIAS,JUDGE** DST/23.04.24 //True copy// P.A. To Judge