Aswin 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. 3857 OF 2024 ``` ``` CRIME NO.439/2024 OF NARAKKAL POLICE STATION, ERNAKULAM ``` ## **`PETITIONER/3RD ACCUSED:`** ``` ASWIN, AGED 20 YEARS S/O RAJESH, PLACKAL HOUSE, EDAVANAKKAD, ERNAKULAM, PIN - 682502 ``` ``` BY ADVS. T.P.SANTHOSH KUMAR C.H.ABDUL RASAC ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SENIOR PUBLIC PROSECUTOR SMT NEEMA T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.3857 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 4[th] accused (wrongly ranked as third accused in the application) in Crime No.439/2024 of the Narakkal Police Station, Ernakulam, registered against the accused (nine in number) for allegedly committing the offences under Sections 143, 147, 148, 341, 323, 324 and 307 r/w Section 149 of the Indian Penal Code. The petitioner was arrested on 19.04.2024. 2. The crux of the prosecution case is that; on 19.04.2024, at 19.00 hours, the accused, in furtherance of their common intention, wrongfully restrained the defacto complainant and his friends, and the first accused stabbed the defacto complainant, and nine sutures had to be administrated on him. Then, the first accused attacked the two other friends of the defacto ``` 3 ``` ## **B.A. No.3857 of 2024** complainant, and they suffered multiple injuries on their bodies and heads. Thus, the accused have committed the above offences. 3. Heard; Sri. Santhosh Kumar. T.P, 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 the FIR would substantiate that there is no specific overt act alleged against the petitioner. The specific overt act is only alleged against the first accused, who has inflicted injuries on the defacto complainant and his friends. In any given case, the petitioner has been in judicial custody for the last 40 days, the investigation in the case is practically complete, and the recovery has been effected. Moreover, the petitioner does not have any criminal antecedents. Hence, the petitioner may be released on bail. **B.A. No.3857 of 2024** ``` 4 ``` 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, there is every likelihood of him tampering with the evidence. Nonetheless, she did not dispute the fact that the specific overt act is only alleged against the first accused so as to attribute the offence under Section 307 of the IPC. 6. On an evaluation of the materials placed on record, it can be gathered that it was the first accused who inflicted the grievous injuries on the injured. The allegation against the petitioner is that he, along with other accused, assisted the first accused to inflict the injuries. The fact remains that the petitioner has been in judicial custody for the last 40 days, the investigation in the case is practically complete, and the recovery has been effected. Moreover, the petitioner is a person without criminal antecedents. **B.A. No.3857 of 2024** ``` 5 ``` 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 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 ``` 6 ``` ## **B.A. No.3857 of 2024** 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 40 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 two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: ``` 7 ``` ## **B.A. No.3857 of 2024** (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; (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 ``` 8 ``` ## **B.A. No.3857 of 2024** 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 information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme ``` 9 ``` ## **B.A. No.3857 of 2024** Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].** mtk/28.05.24 **C.S.DIAS, JUDGE**