Bail Appl. No. 2414 of 2024

B. A. No. 2414 of 2024 -1- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 BAIL APPL. NO. 2414 OF 2024 ``` ``` CRIME NO.339/2024 OF ALUVA EAST POLICE STATION, Ernakulam AGAINST THE ORDER IN CRMC NO.718 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ``` ## **`PETITIONER/S:`** ``` 1BRIJESH KUMAR AGED 26 YEARS S/O DASHRATH GIRI , VIII-CHATIYA TOLA, MATHIYA POST, ARERAJ, EAST CHAMPARAN , BIHAR, PIN - 845453 ``` ``` 2AJEET KUMAR AGED 19 YEARS S/O BHAGWAN GIRI , WARD - 05, TOLA MURLI, HARSIDHI, EAST CHAMPARAN, BIHAR, PIN - 845422 ``` ``` BY ADVS. KURIAN ANTONY EDASSERY M.RETHEESH ``` ``` RESPONDENT/S: ``` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. ERNAKULAM., PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B. A. No. 2414 of 2024 -2- ## **O R D E R** Dated this the 26[th] day of March, 2024 The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 3[rd] and 4[th] accused in Crime No. 339 of 2024 of the Aluva East Police Station, Ernakulam, registered against the accused (4 in number) for allegedly committing the offences punishable under Sections 323, 324, 325, 294(b) and 308 read with Section 34 of the Indian Penal Code. The petitioners were arrested on 21.02.2024. 2. The essence of the prosecution case is that: on 18.02.2024 at around 21:00 hours, the accused, in furtherance of their common intention to commit culpable homicide of the de facto complainant, the 1[st] accused hit the de facto complainant on his head with a plastic cone which caused a deep injury on his forehead, the 2[nd] accused fisted on his face resulting in the dislocation of his teeth and the 3[rd] accused hit him on his left leg with an iron rod. Thereafter, all the accused hit the de facto complainant on the different parts of his body. Thus, the accused B. A. No. 2414 of 2024 -3- have committed the above offences. 3. Heard Sri. Kurian Antony Edassery, learned counsel for the petitioners and Smt. Seetha S., learned Public Prosecutor. 4. Learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of the First Information Statement would substantiate that it was the accused 1 and 2 who allegedly caused the grievous injuries to the de facto complainant so as to attract the non-bailable offence under Section 308 of the Indian Penal Code. Though the 1[st] petitioner / 3[rd] accused hit the de facto complainant with an iron rod, there is no corresponding injury on him. Similarly, the 2[nd] petitioner / 4[th] accused has not caused any injury to the de facto complainant. In any given case, the petitioners have been in judicial custody since 21.02.2024, the investigation of the case is practically complete and the recovery has been effected. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed. B. A. No. 2414 of 2024 -4- 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that there is a specific overt act alleged against the 3[rd] accused that he inflicted an injury on the de facto complainant with an iron rod. Nonetheless, she did not produce the wound certificate of the de facto complainant. 6. On an evaluation of the materials on record, it can be seen that the specific overt act of causing the grievous injuries on the de facto complainant is against the accused 1 and 2. Even though there is an accusation levelled against the 3[rd] accused, that he hit the de facto complainant with an iron rod on his leg, the wound certificate has not been produced. There is also no specific accusation as against the 4[th] accused. 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 B. A. No. 2414 of 2024 -5- 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 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. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on B. A. No. 2414 of 2024 -6- record, and especially taking into account the fact that the petitioners have been in judicial custody since 21.02.2024, that the investigation in the case is practically complete and recovery has been effected, I am of the view that the petitioners are entitled to be released on bail. However, considering the fact that the petitioners’ have no roots in the State of Kerala and following the principles laid down by the Hon’ble Supreme Court in **Hussainara Khatoon v. Home Secretary, State of Bihar** [(1980) 1 SCC 98], I am inclined to allow the bail application, but subject to stringent conditions. 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) 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 Tuesday and Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the B. A. No. 2414 of 2024 -7- Investigating Officer on every Saturday till the finalization of the proceedings; (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 passport, if any, before the court below at the time of execution of the bond. If they have no passport, they shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) The petitioners shall not leave the territorial jurisdiction of the Court of Session, Ernakulam, without the previous permission of the jurisdictional court; (vi) In case of violation of any of the conditions mentioned B. A. No. 2414 of 2024 -8- 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 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]** **Sd/C. S. DIAS JUDGE** Eb B. A. No. 2414 of 2024 -9- ## **`APPENDIX OF BAIL APPL. 2414/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure 1 ``` ``` TRUE COPY OF THE ORDER DATED 12TH DAY OF MARCH 2024.PASSED BY THE HON'BLE COURT OF SESSIONS, ERNAKULAM IN CRL.M.C NO.718/2024 ```