BA No.1167 of 2024

1 BA No.1167 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 BAIL APPL. NO. 1167 OF 2024 CRIME NO.1579/2023 OF Kannanalloor Police Station, Kollam ``` ## **`PETITIONER/S:`** ``` SHAHAR, AGED 23 YEARS S/O SHIHAB, SHARMI MANZIL, KANNANALLOOR P O, THRIKKOVILVATTOM VILLAGE, KOLLAM DISTRICT, PIN - 691576 BY ADVS. M.KIRANLAL MANU RAMACHANDRAN R.RAJESH (VARKALA) SAMEER M NAIR SAILAKSHMI MENON SMT.AKHILA B. JOTHISHA K.A. AASHI K. SHAJAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` SMT.NIMA JACOB, PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1167 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.1167 of 2024** ## **----------------------------------Dated this the 23[rd] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.1579/2024 of the Kannanalloor Police Station, Kollam, registered against the accused (four in number), for allegedly committing the offences punishable under Secs. 341, 323, 324, 326, 307 read with Section 34 of the Indian Penal Code. The petitioner was arrested on 4.1.2024. 2. The gist of the prosecution case is that: on 25.12.2023 at around 10.45 a.m, the accused in furtherance of their common intention and their previous animosity with the defacto complainant, restrained the defacto complainant’s son and his 3 BA No.1167 of 2024 friend. The third accused sprayed pepper spray on the defacto complainant’s son’s eyes, the first accused punched on his face and other accused assaulted him. The second accused threatened to do away his life and, thereafter, the accused 1 and 3 hit on the defacto complainant’s head and neck with a solid cement concrete block and caused grievous injuries to him. Thus, the accused has committed the above offences. 3. Heard; Sri.Kiran Lal .M, the learned counsel appearing for the petitioner and Smt.Nima Jacob, the learned Public Prosecutor. 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. A reading of Annexure-A1 FIR would substantiate that the offences alleged against the petitioner will not be attracted. At any rate, the petitioner has been in judicial custody since 4.1.2024, which is fifty days. The investigation in the case is 4 BA No.1167 of 2024 practically complete and recovery has been effected. Therefore the petitioner’s further detention is not necessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She contended that the injured had suffered serious injuries. She made available the accident register cum wound certificate of one of the injured named, Anandu to substantiate the fact that the injured had suffered injuries to his spinal cord and vertebra. She submitted that the investigation in the case is in progress. Nonetheless, she conceded to the fact that the petitioner has no criminal antecedents and the recovery has been effected. 6. 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 a 5 BA No.1167 of 2024 punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 7. 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. 8. 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. 9. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions 6 BA No.1167 of 2024 made across the Bar, particularly after going through the accident register cum wound certificate of the injured and finding that the injured have not suffered grievous injuries as alleged by the prosecution, that the petitioner has been in judicial custody since 4.1.2024, that the investigation in the case is practically complete and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. 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: - (i) The petitioner shall appear before the Investigating - Officer on every Saturday between 9 a.m. and 11 a.m for a 7 BA No.1167 of 2024 period of one month or till the final report is laid, whichever is earlier. 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 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 8 BA No.1167 of 2024 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. (vii) 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/- sks/23.2.2024 **C.S.DIAS, JUDGE**