Bail Appn. No. 2439 of 2024 v. State of Kerala

## **`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. 2439 OF 2024 ``` ``` CRIME NO.234/2024 OF CHATHANNOOR POLICE STATION, KOLLAM PETITIONER/S: ``` ``` 1BIJIN AGED 23 YEARS S/O BIJU, KALLUVILA VEEDU, MEENADU KIZHAKKUMKARA, NEAR ARADHANA CLUB, CHATHANNOOR, KOLLAM DISTRICT, PIN – 691 572. ``` - **`2 AKHIL @ MANU AGED 24 YEARS`** ``` S/O MOHANAN, AKHIL BHAVANAM, NEAR PLAVILA TEMPLE, MEENADU EAST, CHATHANNOOR, KOLLAM DISTRICT, PIN – 691 572. ``` - **`3 SONY SS AGED 24 YEARS`** ``` S/O SASIKUMAR, CHALIL PUTHEN VEEDU, THAZHAM SOUTH, CHATHANNOOR, KOLLAM DISTRICT, PIN – 691572. ``` - **`4 NITHIN K MURALI AGED 24 YEARS`** ``` S/O MURALEEDHARAN, KALA MANDIRAM, NEAR KOLLAKKUZHY RATION SHOP, MEENADU EAST, THAZHAM SOUTH, CHATHANNOOR, KOLLAM DISTRICT, PIN – 691 572. ``` - **`5 JAYASANKAR AGED 24 YEARS S/O JAIN, KUNNUMPURATHU VEEDU, THAZHAM SOUTH, CHATHANNOOR, KOLLAM DISTRICT, PIN – 691 572.`** - **`6 SHIBIN AGED 24 YEARS`** ``` S/O SIVANTHAKUMAR, R S BHAVAN, NEAR KOLLAKKUZHY RATION SHOP, MEENADU EAST, CHATHANNOOR, KOLLAM DISTRICT, PIN – 691 572. ``` ``` 2 ``` ``` Bail Appln.NO.2439 OF 2024 ``` ``` BY ADVS. MANSOOR ALI BIJITH S.KHAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. ``` ## **`OTHER PRESENT:`** ## **`SR. PUBLIC PROSECUTOR SHRI C.S. HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 26.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Bail Appln.NO.2439 OF 2024 ``` ``` 3 ``` Dated this the 26[th] day of March, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the accused 3,4,7,8,10&11 in Crime No.234/2024 of the Chathannur Police Station, Kollam, registered against the accused (12 in number) for allegedly committing the offences punishable under Sections 143,147,148,341,323,324 and 307 r/w Section 149 of the Indian Penal Code. The petitioners were arrested on 06.03.2024. 2. The crux of the prosecution case, is that; on 26.02.2024 at around 18.50 hours, the accused 1 to 7, in prosecution of their common intention to assault and murder the defacto complainant, wrongfully restrained him, and the first accused stabbed the defacto complainant on different parts of his body. They also attempted to snatch the gold chain of the defacto ``` 4 ``` ``` Bail Appln.NO.2439 OF 2024 ``` complainant. Thus, the accused have committed the above offences. 3. Heard Sri. Manzoor Ali, learned counsel appearing for the petitioners and Shri. C.S. Hrithwik, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioners submitted that, petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of Annexure A1 First Information Report would reveal that the predicate offence under Section 307 IPC will not be attracted against the petitioners. The petitioners have been in judicial custody since 06.03.2024. By orders in B.A.Nos.2223/2024 and 2051/2024, this Court has enlarged the accused 5 & 9 on bail. The petitioners claim parity with the said accused. The petitioners have been in judicial custody since ``` 5 ``` ``` Bail Appln.NO.2439 OF 2024 ``` 06.03.2024, the investigation in this case, so far as the petitioners are concerned, is complete and recovery is effected. Therefore, the petitioners’ further detention is unnecessary. Hence, the bail application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation is still in progress. Nonetheless, the conceded to the fact that the accused 5 & 9 have already been enlarged on bail and that the investigation in the case, so far as the petitioners’ are concerned, is not complete. 6. A reading of First Information Report and materials on record reveal that the 1[st] accused stabbed the defacto complainant on different parts of his body, which prima facie attracts the offence under Section 307 of the Indian Penal Code. The overt act alleged against the petitioners is that, they in prosecution of the common intention had facilitated the 1[st] accused to ``` 6 ``` ``` Bail Appln.NO.2439 OF 2024 ``` stab the defacto complainant. 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 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. ``` Bail Appln.NO.2439 OF 2024 ``` ``` 7 ``` 9. 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. 10. After bestowing my anxious consideration to the facts, the rival submission made across the Bar, and the materials placed on record, especially on considering the fact that the accused 5 & 9 have already been enlarged on bail by this Court and the petitioners are entitled to parity, that the petitioners have been in judicial custody since 06.03.2024, the investigation in the case, so far as the petitioners are concerned, is practically complete and recovery has been effected, I am of the view that the petitioners detention is unnecessary. Hence, I am inclined to allow ``` Bail Appln.NO.2439 OF 2024 ``` **==> picture [8 x 9] intentionally omitted <==** 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.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 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 ``` 9 ``` ``` Bail Appln.NO.2439 OF 2024 ``` 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; - (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 furnish their present addresses and their mobile ``` Bail Appln.NO.2439 OF 2024 ``` ``` 10 ``` phone numbers to 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. - (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 ``` Bail Appln.NO.2439 OF 2024 ``` ``` 11 ``` 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** S.M.K. ``` Bail Appln.NO.2439 OF 2024 ``` ``` 12 ``` ## **`APPENDIX`** ``` PETITIONERS’ ANNEXURES Annexure A1THE TRUE COPY OF THE FIR IN CRIME NO. 234/2024 OF CHATHANNUR POLICE STATION, KOLLAM DISTRICT DATED 27.02.2024 Annexure A2THE TRUE COPY OF THE ORDER IN CRL M.C. NO.473/2024 DATED 20.03.2024 Annexure A3THE TRUE COPY OF THE ORDER IN CRL M.C. NO 474/2024 DATED 20.03.2024 Annexure A 4TRUE COPY OF THE ORDER IN B.A 2051/2024 DATED 19.03.2024 ```