High Court of KeralaSingle Judge2024-04-09Bail granted; application allowed with stringen...

Athul Babu v. State of Kerala and The Station House Officer, Karunagappally Police Station, Kollam

Case / Petition Number:BAIL APPL. NO. 2864 OF 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2024-04-09
Court Decision / Holding: The petition is allowed; the petitioner is to be released on bail on a bond for Rs. 1,00,000 with two solvent sureties of Rs. 1,00,000 each, subject to conditions: (i) appearance before the Investigating Officer every Saturday 9 a.m.–11 a.m. until final report; (ii) no inducement or tampering with witnesses; (iii) no commission of any offence while on bail; (iv) surrender of passport; (v) no leaving jurisdiction without permission; (vi) court may cancel bail on violation; (vii) applications to modify bail conditions may be entertained; (viii) IO may investigate and recover during bail as permitted by law.
Final Disposition: Bail granted; application allowed with stringent conditions.

Parties to the Case

Appellants / Petitioners

Athul Babu

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
The Station House Officer Karunagappally Police Station, Kollam

Legal Representation & Advocates

Counsels for Petitioners

• C.R. Jayakumar
• Nobel Raju
• Aleena Jose

Counsels for Respondents

• Smt. Seetha S.

Case Synopsis & Summary

This is a bail application under Section 439 CrPC filed by the second accused in Crime No.170/2024 of the Karunagappally Police Station, Kollam, involving five accused (one minor) alleged to have formed an unlawful assembly on 28 January 2024 with a common intention to attack Akhil (deceased). The 1st accused is said to have stabbed the deceased, causing fatal injuries, and the remaining accused allegedly aided the offence. The deceased died on 30 January 2024. The petitioner argues innocence and that the 302 IPC charge cannot be attracted against him since the 1st accused inflicted the fatal wound. He has been in judicial custody since 28 January 2024 and the investigation is practically complete with recoveries effected. The Public Prosecutor contends that the accused conspired with common intention and the petitioner, who has prior antecedents (Crime No.119/2024 at the same station), might commit similar offences if released. The Court, after considering the record and invoking constitutional principles of presumption of innocence and the general bail principle, notes that the overt act relates to the 1st accused and the petitioner’s role is aiding. It grants bail under stringent conditions, including bonds, two sureties, regular appearances, non-tampering, passport surrender, and territorial restrictions, with safeguards under Supreme Court guidance on bail conditions.

Provisions of Law Cited

Section 439 of the Code of Criminal Procedure, 1973Sections 143, 147, 148, 341, 294(b), 323, 324 and 302 r/w Section 149 of the Indian Penal Code

Legal Doctrines & Maxims

Presumption of innocence until proven guilty (Sanjay Chandra v. CBI, 2012 (1) SCC 40)
Bail is a rule and imprisonment before conviction is an exception (Dataram Singh v. State of U.P., 2018 (3) SCC 22)
Undertrials’ right to life; indefinite detention may infringe Article 21 (State of Kerala v. Raneef, 2011 (1) SCC 784)
Investigations and recoveries may proceed even when the accused is on bail (Sushila Aggarwal v. State (NCT of Delhi) and another, 2020 (1) KHC 663)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that he is entirely innocent and has been falsely implicated. A reading of Annexure A1 FIR shows that the fatal injury was inflicted by the 1st accused, and there is no specific overt act attributed to the petitioner that would make him liable for murder. The petitioner has been in judicial custody since 28 January 2024 and the investigation is practically complete with recoveries already effected. Detention beyond a reasonable period would be punitive and inconsistent with the presumption of innocence and due process. He has cooperated with the authorities, and nothing on record proves his involvement in the murder beyond aiding the 1st accused, which does not attract the charge of murder against him. The applicant therefore prays for grant of bail under Sec. 439 CrPC on suitable conditions, rather than continued detention.

Contentions of Respondents

The State contends that the accused acted in concert and that the 1st accused murdered the deceased in pursuance of common intention, with the petitioner aiding the offence. The record shows the petitioner has criminal antecedents in Crime No. 119/2024 of the same Police Station, indicating a propensity for such offences. Release at this stage could lead to repetition and obstruct investigation. The investigation is ongoing, and the case involves several IPC sections including 143, 147, 148, 341, 294(b), 323, 324 and 302 r/w 149. Hence, the bail application should be dismissed to ensure the smooth progress of the trial and to prevent tampering with evidence or witnesses. The prosecution requests that the court maintain stringent conditions if bail is granted.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Sanjay Chandra v. CBI	2012 (1) SCC 40	Positive	Supports presumption of innocence and cautions against denying bail merely due to past conduct.
Dataram Singh v. State of U.P.	2018 (3) SCC 22	Positive	Bail is a rule and detention before conviction is an exception; requires case-specific evaluation.
State of Kerala v. Raneef	2011 (1) SCC 784	Positive	Detention of undertrials must not be indefinite; protects Article 21 rights.
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Allows certain bail-related investigations and recoveries to proceed; informs conditioning on bail.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** **BAIL APPL. NO. 2864 OF 2024** **CRIME NO.170/2024 OF Karunagapally Police Station, Kollam** **PETITIONER/S:** **ATHUL BABU AGED 21 YEARS CHANDRA BABU, ERAKKATHARA, VARAVILA, CLAPPANA, KARUNAGAPPALLY, KOLLAM., PIN - 690525** **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 2 THE 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 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 2864 OF 2024 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 2[nd] accused 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 petitioner was 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 an unlawful assembly and the 1[st] accused indiscriminately stabbed the deceased with a knife and 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 BAIL APPL. NO. 2864 OF 2024 3 offences. Thus, the accused have committed the above offences. 3. Heard; Sri.C.R.Jayakumar, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has 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 petitioner because it was the 1[st] accused who inflicted the fatal injury on the deceased. In any given case, the petitioner has been in judicial custody since 28.01.2024, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. BAIL APPL. NO. 2864 OF 2024 **==> picture [7 x 9] intentionally omitted <==** 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that the accused, had conspired, and in prosecution of their common intention the 1[st] accused murdered the deceased. She submitted that the petitioner is a person with criminal antecedents since he is involved in Crime No.119/2024 of the very same Police Station. It is after the present crime, that the next crime was committed. If the petitioner is released on bail, there is every likelihood of him committing similar offence. 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 petitioner is that he assisted the 1[st] BAIL APPL. NO. 2864 OF 2024 5 accused to commit the murder. The fact remains that the petitioner has 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 BAIL APPL. NO. 2864 OF 2024 6 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. 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 BAIL APPL. NO. 2864 OF 2024 7 against the petitioner is that he 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, I am of the view that the petitioner's 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 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 BAIL APPL. NO. 2864 OF 2024 8 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 to the effect before the court below on the date of execution of the bond; (v) The petitioner 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 application for cancellation of bail, if any filed, and pass orders on the same, in BAIL APPL. NO. 2864 OF 2024 9 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 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/- **C.S.DIAS, JUDGE** rkc/09.04.24 BAIL APPL. NO. 2864 OF 2024 10 ## **APPENDIX OF BAIL APPL. 2864/2024** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF THE FIR IN CRIME NO. 170/2024 KARUNAGAPPALLY POLICE STATION DATED 28.01.2024** **Annexure A2 TRUE COPY OF THE ORDER IN CRL.M.P. NO. 484/2024 DATED 21/03/2024 ON THE FILES OF HON'BLE PRINCIPAL SESSIONS COURT, KOLLAM Annexure A3 TRUE COPY OF THE FIR IN CRIME NO. 119/2024 OF OCHIRA POLICE STATION DATED 28.01.2024**