Ayyappan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 ``` ``` BAIL APPL. NO. 5130 OF 2024 ``` ``` CRIME NO.515/2024 OF KALAMASSERY POLICE STATION, ERNAKULAM PETITIONER/ACCUSED: ``` ``` AYYAPPAN, AGED 40 YEARS ``` ``` S/O GURUSWAMI, PANAYAPPILLY HOUSE, PERINGAZHA KARA, HMT COLONY P.O, THRIKKAKKARA NORTH VILLAGE, ERNAKULAM DISTRICT, PIN - 683546 ``` ``` BY ADVS. K.S.ANEESH SHYAMDEEP S.SHENOY RENISH RAVEENDRAN C.S.GEETHU ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADVS. SPECIAL PUBLIC PROSECUTOR SRI.C.K.SURESH ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.GRASHIOUS KURIAKOSE ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **B.A. No.5130 of 2024** ``` 2 ``` ## **Dated this the 18[th ] day of July, 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.515/2024 of the Kalamassery Police Station, Ernakulam, registered against him for allegedly committing the offences punishable under Sections 324 and 302 of the Indian Penal Code. The petitioner was arrested and remanded to on judicial custody 30.04.2024. 2. The concise case of the prosecution is that; on 29.04.2024, at around 18.30 hours, while the accused and his friend Sunil (deceased) along with two other occurrence witnesses were consuming alcohol, the son of the accused named Vishu, a boy aged 15 years, went to ``` 3 ``` ## **B.A. No.5130 of 2024** the scene of occurrence and asked the accused to stop drinking and return with him. Then, the deceased got infuriated and attacked the son of the accused with the handle of a pickaxe, and the son of the accused suffered grievous injuries. Out of the said animosity, the accused struck on the head of the deceased with the same weapon and he suffered fatal injuries on his skull and ribs, and succumbed to the injuries. Thus, the accused has committed the above offences. 3. Heard; Sri.K.S.Aneesh, the learned counsel appearing for the petitioner and Sri.C.K.Suresh, the learned Special Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. It was only when the petitioner was attempting to save the life of his son from the attack made by the deceased, that the alleged ``` 4 ``` ## **B.A. No.5130 of 2024** incident occurred. The police has registered Annexure A1 FIR against the deceased for committing the predicate offence under Section 326 of the IPC against the petitioner’s son. Annexure A3 treatment records would show that the petitioner’s son had suffered an undisplaced fracture on the right anterior frontal bone and was hospitalised. It is only when the petitioner attempted to pull out the weapon from the hands of the deceased, the same had hit on the deceased and he suffered the injury. Therefore, the offence under Section 302 of the IPC cannot be attributed against the petitioner. The petitioner is a law abiding citizen without any criminal antecedents. The petitioner’s wife is no more and there is no person to look after his son. In any given case, the petitioner has been in judicial custody for the last 80 days, the investigation in the case is practically complete and recovery has been effected. ``` 5 ``` ## **B.A. No.5130 of 2024** Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that it was the petitioner who stabbed the deceased with the handle of a pickaxe and committed the murder. He submitted that investigation in the case is practically complete, but the final report has not been laid. If the petitioner is released on bail, there is a likelihood of him intimidating the witnesses and tampering with evidence. Hence, the application may be dismissed. Nonetheless, he did not dispute the fact that the petitioner does not have any criminal antecedents. 6. The prosecution case is that, on 29.04.2024, the petitioner hit on the deceased’s head with the handle of a pickaxe and he suffered injuries to his skull and ``` 6 ``` ## **B.A. No.5130 of 2024** succumbed to the injuries. On a prima facie evaluation of the materials on record, it can be seen that the genesis of the the alleged incident is the attack made by the deceased against the son of the petitioner. The said fact stands corroborated by Annexure A2 FI Statement of the son of the petitioner and Annexure A1 FIR registered against the deceased and Annexure A3 treatment records of the petitioner’s son. Therefore, the defence of the petitioner that it was the deceased who actually attacked the son of the petitioner is prima facie seems to be correct. However, that is a matter to be investigated and ultimately decided at the time of trial. The fact remains that the petitioner has been in judicial custody for the last 80 days, the investigation in the case is practically complete and recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the ``` 7 ``` ## **B.A. No.5130 of 2024** 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 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 ## **B.A. No.5130 of 2024** ## **`8`** 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. 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. The right to bail cannot be denied merely due to the sentiments of the society. 11. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that there is a counter case registered against the deceased, the petitioner’s son also suffered injuries in the same incident, which led to the registration of Annexure A1 FIR, petitioner has been in judicial custody for the last 80 days, the investigation in the case is ``` 9 ``` ## **B.A. No.5130 of 2024** practically complete and recovery has been effected, and also that the petitioner does not have any criminal antecedents, I am of the definite 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.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 laid. He shall also appear before the Investigating Officer as and when directed; ``` 10 ``` ## **B.A. No.5130 of 2024** (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 not leave the territorial jurisdiction of the Court of Session, Ernakulam without the previous permission of the jurisdictional court; (v) The petitioner shall furnish his present and permanent address and mobile phone number before the Investigating Officer and file a memo to the effect before the jurisdictional court; ``` 11 ``` ## **B.A. No.5130 of 2024** (vi) 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; (vii) 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. (viii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the ``` 12 ``` ## **B.A. No.5130 of 2024** 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].** (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. rmm/18/7/2024 **C.S.DIAS, JUDGE**