Athul and Rahul v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2212 OF 2024 ``` ``` CRIME NO.120/2024 OF PERAMANGALAM POLICE STATION, THRISSUR AGAINST THE ORDER DATED IN BAIL APPL. NO.1528 OF 2024 OF HIGH COURT OF KERALA ``` ## **`PETITIONERS/ACCUSED 1 AND 2:`** ``` 1ATHUL AGED 25 YEARS S/O KISHORE, PANDIYATHU HOUSE, HARISREE NAGAR, PERAMANGALAM, THRISSUR., PIN - 680545 ``` ``` 2RAHUL AGED 25 YEARS ``` ``` S/O SURESH, THOTTAPPULLY HOUSE, KALLU SHAP ROAD, PERAMANGALAM, THRISSUR., PIN - 680545 ``` ``` BY ADVS. M.R.SASITH ANJANA SURESH.E LIDHIYA GEORGE ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`BY SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2212 of 2024** ``` 2 ``` **Dated this the 25[th] day of March, 2024** ## **O R D E R** This is the second application filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in Crime No.120/2024 of the Peramangalam Police Station, Thrissur registered against the accused for allegedly committing the offences punishable under Sections 323, 324, 307 and 506 read with Section 34 of the Indian Penal Code. The petitioners were arrested on 16.02.2024. 2. The essence of the prosecution case is that: on 12.02.2024, the accused in furtherance of their common intention to murder the defacto complainant, the first accused had inflicted a cut injury on the forehead of the defacto complainant and stabbed him on his neck with the handle of the knife. The first accused also hit the **B.A. No.2212 of 2024** ``` 3 ``` defacto complainant on his nose with his hand and the second accused hit him on the back of his head with his hand. Thus, the accused have committed the above offences. 3. Heard; Sri. Sasith M. R., the learned counsel appearing for the petitioners and Smt. Seetha.S, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. By Annexure A3 order, this Court has already dismissed the petitioners’ earlier application for bail. In any given case, the petitioners have been in judicial custody since 16.02.2024, the investigation in the case is practically complete, and the recovery has been effected. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the **B.A. No.2212 of 2024** ``` 4 ``` application. Nonetheless, she conceded to the fact that the investigation in the case is practically complete and the recovery has been effected. She prayed that the application may be dismissed. 6. The crux of the prosecution case is that the accused, in furtherance of their intention, had inflicted a head injury on the forehead of the defacto complainant and stabbed him on his neck with the handle of a knife. Indisputably, the petitioners have been in judicial custody since 16.02.2024, which is 40 days. The investigation in the case is practically complete, and the recovery has been effected. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the2024:KER:11608 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 ``` 5 ``` ## **B.A. No.2212 of 2024** 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 circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 9. Subsequently, in **State of Kerala v. Raneef** , [(2011) 1 SCC 784], the Honourable Supreme Court has again held 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 an anxious consideration of the facts, the **B.A. No.2212 of 2024** ``` 6 ``` materials placed on record, the rival submissions made across the Bar, especially taking into account the fact that the petitioners have been in judicial custody since 16.02.2024, that the investigation in the case is practically complete, and that the recovery has been effected, I am of the definite view that the petitioners’ further detention is not necessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each 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 for a period of one month or till the final **B.A. No.2212 of 2024** ``` 7 ``` report is laid, whichever is earlier. 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 him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (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 an affidavit to the effect before the court below on the date of execution of the bond; ``` 8 ``` ## **B.A. No.2212 of 2024** (v) The petitioners shall furnish their present address and permanent address, and their mobile phone numbers to the court below and the Investigating Officer; (vi) 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. (vii) 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 petitioners even while ``` 9 ``` ## **B.A. No.2212 of 2024** 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].** mtk/25.03.24 **C.S.DIAS, JUDGE** ``` 10 ``` ## **B.A. No.2212 of 2024** ## **`APPENDIX OF BAIL APPL. 2212/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1TRUE COPY OF THE FIR NO. 120/2024 OF PERAMANGALAM POLICE STATION, THRISSUR ANNEXURE A2TRUE COPY OF ORDER DATED 19.02.2024 IN CMP NO.1062/2024 ANNEXURE A3ORDERDATED06-03-2024INBAIL APPL.1528/2024 ON HIGH COURT ```