ASOSH JOY v. State of Kerala and Abdul Ramiz

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3569 OF 2024 ``` ``` CRIME NO.141/2024 OF GURUVAYOOR POLICE STATION, THRISSUR ``` ## **`PETITIONER/ACCUSED:`** ``` ASOSH JOY, AGED 34 YEARS S/O JOY JOSEPH, THOZHUTHUMPARAMBU HOUSE, AMALA NAGAR DESOM, ADATU VILLAGE, THRISSUR DISTRICT, PIN - 680554 ``` ``` BY ADVS. RAJIT V.V.JOY ``` ## **`RESPONDENTS/COMPLAINANT/STATE:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ``` 2ABDUL RAMIZ, AGED 25 S/O HAMEED, KOMBATHKAYIL HOUSE,KALLUR P.O, VADAKKEKKAD, THRISSUR (IS IMPLEADED AS PER ORDER DATED 29.05.2024 IN CRL.M.A.NO.1 OF 2024. ) ``` ## **`BY ADV K.K.SUBEESH`** ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.3569 of 2024** ``` 2 ``` ## **Dated this the 29[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 sole accused in Crime No.141/2024 of the Guruvayoor Temple Police Station, Thrissur, registered against him for allegedly committing the offences punishable under Sections 457 and 380 of the Indian Penal Code. The petitioner was arrested on 13.03.2024. 2. The essence of the prosecution case is that; between 10.00 p.m, on 10.03.2024 and 10.00 a.m, on 11.03.2024, the accused broke open the door of the financial concern named L&T Finance at Guruvayoor and committed theft of Rs.32,40,650/- . Thus, the accused has committed the above offences. 3. Heard; Sri. Rajit, the learned counsel appearing for the petitioner, Sri. C.S. Hrithwik, the learned Public Prosecutor and Sri.K.K. Subeesh, the learned counsel for **B.A. No.3569 of 2024** ``` 3 ``` the intervenor/defacto complainant. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner’s involvement in the crime. Even though the petitioner had filed four applications to enlarge him on bail, the learned Magistrate, by Annexure A1 to A4 orders, dismissed the applications. In any given case, the petitioner has been in judicial custody for the last 78 days, the investigation in the case is practically complete, and the recovery has been effected. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that the Investigating Officer is ascertaining as to whether the petitioner has any criminal antecedents. If the petitioner is released on bail, there is every likelihood of him tampering with ``` 4 ``` ## **B.A. No.3569 of 2024** evidence and intimidating the witnesses. Hence, the application may be dismissed. 6. The learned counsel for the intervenor also endorsed the submissions of the learned Public Prosecutor. He also stated that an internal enquiry is in progress. If the petitioner is released on bail, there is every likelihood of him influencing the witnesses and interfering with the internal enquiry. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner is that, on the intervening nights of March 10 and 11, 2024, he broke open the financial institution of the defacto complainant and committed theft of Rs.32,40,650/-. The fact remains that the petitioner has been in judicial custody for the last 78 days, the investigation in the case is practically complete, and the recovery has been effected. Moreover, the petitioner is a person without any criminal antecedents. **B.A. No.3569 of 2024** ``` 5 ``` 8. 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. 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 ``` 6 ``` ## **B.A. No.3569 of 2024** that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 11. 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. 12. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioner has been in judicial custody for the last 78 days, that the investigation in the case is practically complete, that the recovery has been effected, and that the petitioner does not have any criminal antecedents, I am of the definite view that the petitioner’s further detention is not necessary. Hence, I ``` 7 ``` ## **B.A. No.3569 of 2024** 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.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 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 ``` 8 ``` ## **B.A. No.3569 of 2024** manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (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. ``` 9 ``` ## **B.A. No.3569 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 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].** **Sd/-** mtk/29.05.24 **C.S.DIAS, JUDGE**