Bibin v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 31[ST] DAY OF MAY 2024 / 10TH JYAISHTA, 1946 BAIL APPL. NO. 4406 OF 2024 ``` ``` CRIME NO.466/2024 OF VADAKKANCHERRY POLICE STATION, PALAKKAD PETITIONER/ACCUSED NO.1: ``` ``` BIBIN AGED 25 YEARS S/O.BABU SIVAN, PARAYIL VEEDU, PANNIYANKARA, PALAKKAD., PIN - 678686 ``` ## **`BY ADV NIREESH MATHEW`** ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SMT.NEEMA T.V. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.4406 of 2024** ``` 2 ``` ## **Dated this the 31[st] day of May, 2024** ## **O R D E R** This is the second application filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.466/2024 of the Vadakkancherry Police Station, Palakkad, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 341, 323, 324 & 326 read with Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’). The petitioner was arrested on 10.05.2024. 2. The essence of the prosecution case is that: on 15.04.2024, at around 19.30 hours, the accused, in furtherance of their common intention, wrongfully restrained the de-facto complainant and the second accused caught hold of his shoulder and pulled him on ``` 3 ``` ## **B.A. No.4406 of 2024** the ground. Then, the first accused hit the de-facto complainant with a stone on his nose, and he suffered a nasal bone fracture. The accused Nos.2 & 3 also kicked him on his body and caused grievous injuries to him. Thus, the accused have committed the above offences. 3. Heard; Sri. Nireesh Mathew, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He have been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Section 326 of the IPC to deny bail to the petitioner. There is no material to substantiate that the de-facto complainant sustained any grievous injury. The petitioner has been in judicial custody since 10.05.2024, the investigation in the case is practically **B.A. No.4406 of 2024** ``` 4 ``` complete, and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the accused have caused grievous injuries to the de-facto complainant. She made available treatment-cum-wound certificate of the de-facto complainant dated 01.05.2024 issued by the Elite Mission Hospital, Thrissur, to substantiate the fact that the de-facto complainant suffered a nasal bone fracture. She submitted that the investigation in the case is in progress. If the petitioner is released on bail, it would hamper the investigation. Hence, the application may be dismissed. 6. On an evaluation of the materials on record, it can be gathered that it was the petitioner who assaulted the de-facto complainant with a stone and he suffered a ``` 5 ``` ## **B.A. No.4406 of 2024** nasal bone fracture. The said fact stands prima-facie corroborated by the accident register-cum-wound certificate. The fact remains that the petitioner has been in judicial custody for the last 21 days, the investigation in the case is complete and the recovery has been effected. 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 the rule and putting a person in jail is an **B.A. No.4406 of 2024** ``` 6 ``` 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. 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. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially considering the fact that the petitioner has been in judicial custody for the last 21 days, the investigation in the case is complete and recovery has been effected, I am of the ``` 7 ``` ## **B.A. No.4406 of 2024** 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 required; - (ii) The petitioner shall not directly or indirectly - make any inducement, threat or procure to any person ``` 8 ``` ## **B.A. No.4406 of 2024** 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 to consider the application for cancellation of bail, if any filed, and pass orders on the same, in **B.A. No.4406 of 2024** ``` 9 ``` 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/-** rmm/31/5/2024 **C.S.DIAS, JUDGE**