Bail Application No. 4428 of 2024

1 Bail Application No.4428 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 4428 OF 2024 ``` ``` CRIME NO.211/2024 OF Mangalam Dam Police Station, Palakkad PETITIONER/S: ``` - **`1 JINESH.A.Y,AGED 36 YEARS S/O.YACOB,ALYATTUKUDI HOUSE, PAITHALA, OLINKADAVU,MANGALAM DAM, PALAKKAD, PIN - 678706`** - **`2 ANEESH,AGED 31 YEARS S/O KANNAN,RESIDING AT PAITHALA OLINKADAVU POST,ALATHUR, PALAKKAD, PIN - 678706`** - **`3 SINOJ VARGHESE,AGED 41 YEARS PATHICKAL HOUSE,PAITHALA, OLINKADAVU,MANGALAM DAM, PALAKKAD, PIN - 678706`** ``` BY ADV BASIL MATHEW ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031`** ``` BY ADV V.A.JOHNSON (VARIKKAPPALLIL)- FOR INTERVENOR ``` ``` Sr PP Sri C.S Hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.4428 of 2024 ## **C.S.DIAS,J** ## **======================** **Bail Application No.4428 of 2024 -----------------------------------** ## **Dated this the 10[th] day of June, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 to 3 in Crime No.211/2024 of the Mangalam Dam Police Station, Palakkad, registered against them, for allegedly committing the offences punishable under Sections 341, 323 , 324, 326 and 506(ii) read with Sec.34 of the Indian Penal Code. The petitioners 1 and 3/accused 1 and 3 were arrested on 30.4.2024 and the second petitioner/second accused surrendered on 6.5.2024. 2 **.** The gist of the prosecution case is that: on 26.4.2024 at around 21.00 hours, the accused, in furtherance of their common intention, formed themselves into an unlawful assembly for assaulting the de facto 3 Bail Application No.4428 of 2024 complainant. The accused wrongfully restrained the de facto complainant and his friend named Moosakutty and they hit on the leg of the de facto complainant with a crowbar and the de facto complainant suffered a fracture of both bones of his leg. The de facto complainant’s friend also suffered grievous injuries. Thus, the accused have committed the above offences. 3. Heard; Sri.Basil Mathew, the learned counsel appearing for the petitioners, Sri.C.S Hrithwik, the learned Senior Public Prosecutor and Sri.V.A Johnson, the learned counsel appearing for the intervenor/de facto complainant. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating Officer has deliberately incorporated the offence under Sec.326 to deny bail to the petitioners. In any given case, the petitioners 1 and 3 have been in judicial custody for the last 42 days and the second petitioner has been in judicial custody for the last one month, the investigation in the 4 Bail Application No.4428 of 2024 case is practically complete and recovery has been effected. Hence, the petitioners may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. He submitted that the petitioners had caused grievous injuries to the de facto complainant by causing fractures on both bones of his leg. He made available the accident register cum wound certificate dated 26.4.2024 of the de facto complainant to substantiate the nature of injuries suffered by him. He submitted that the investigation is in progress. If the petitioners are released on bail, there is a likelihood of them tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed. 6. The learned counsel for the intervenor also opposed the application. He submitted that the de facto complainant can walk only with the assistance of a walker. He has suffered grievous injuries. In addition to the same, the accused had threatened that they will do away with the life of the de facto complainant if they are released on bail. The de facto complainant fears for his life and apprehends 5 Bail Application No.4428 of 2024 that the petitioners may tamper with the evidence. Hence, the application may be dismissed. 7. On an evaluation of the materials on record, it can be seen that the accused, in furtherance of their common intention, had wrongfully restrained the de facto complainant and his friend and hit the de facto complainant with a crowbar and caused fractures on both bones of his leg. The above allegation prima facie stands corroborated with the accident register cum wound certificate, which shows that the de facto complainant had suffered displacement fracture on his right leg. Nonetheless, that is a matter to be investigated and decided at the time of trial. The fact remains that the petitioners have been in judicial custody for more than 30 days, the investigation in the case is complete and recovery has been effected. Nonetheless, in order to safeguard the apprehension of the de facto complainant that the petitioners may again threaten his life, I am of the view that the petitioners can be released on bail subject to stringent conditions. 6 Bail Application No.4428 of 2024 8. 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. 9. 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. 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into consideration the fact that the petitioners have been in judicial custody for above 30 days, the investigation in the case is complete and recovery has been effected, I am of the definite view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. 7 Bail Application No.4428 of 2024 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 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 them 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; 8 Bail Application No.4428 of 2024 (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 affidavits to the effect before the court below on the date of execution of the bond; (v) The petitioners shall not enter the territorial limits of the Mangalam Dam Police Station, Palakkad until the final report is filed except for the purpose of reporting before 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. 9 Bail Application No.4428 of 2024 (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/- sks/10.6.2024 **C.S.DIAS,JUDGE**