Burash v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1291 OF 2024 ``` ``` CRIME NO.251/2024 OF HARBOUR POLICE STATION, ERNAKULAM AGAINST THE ORDER/JUDGMENT DATED 13.02.2024 IN CMP NO.184 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI PETITIONER/ACCUSED: ``` ``` BURASH, AGED 26 YEARS S/O ABID, HOUSE NO.2/857, C.P THODU, FORT KOCHI, KOCHI, PIN - 682002 ``` ``` BY ADV ARJUN S. ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` PUBLIC PROSECUTOR SMT. SHYNIMOL V.O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.1291 of 2024** ``` 2 ``` ## **Dated this the 11[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 sole accused in Crime No.251/2024 of the Harbour Police Station, Ernakulam registered against him for allegedly committing the offence punishable under Section 304 of the Indian Penal Code. The petitioner was arrested on 8.2.2024, 2. The crux of the prosecution case, is that; on 7.2.2024, at around 22.20 hours, the accused drove the lorry bearing No. KL 41 F-0730 in a manner endangering human life through the Kundannur-BOT road, on the wrong side of the road, and when the lorry reached near ``` 3 ``` ## **B.A. No.1291 of 2024** the Kadai restaurant it hit against the motorcycle which was ridden by one Miras (deceased). In the incident, the deceased sustained fatal injuries and lost his life. The accused fled away from the scene without stopping the vehicle. Thus, the accused has committed the above offence. 3. Heard; Sri. Arjun S., learned counsel appearing for the petitioner and Smt. Shynimol V.O. the learned Public Prosecutor. 4. Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure A1 FIR would substantiate that the offence under Section 304 will not be attracted. In any given case, the petitioner has been in judicial custody since 8.2.2024, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner’s ``` 4 ``` ## **B.A. No.1291 of 2024** continued detention is unnecessary. 5. The learned Public Prosecutor opposed the application. She contended that the investigation is still in progress. Nonetheless, she conceded to the fact that the petitioner has been in judicial custody for the last more than one month and recovery has been effected. 6. The crux of the prosecution allegation is that, the accused drove the lorry in a manner endangering human life and hit on the motorcycle ridden by the deceased who fell on the ground and succumbed to fatal injuries. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the2024:KER:11608 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 punitive and it would **B.A. No.1291 of 2024** ``` 5 ``` 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. 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. ``` 6 ``` ## **B.A. No.1291 of 2024** 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially taking into account the fact that the petitioner has been in judicial custody since 8.2.2024, 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 not necessary. 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. ``` 7 ``` ## **B.A. No.1291 of 2024** and 11 a.m for a 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 **B.A. No.1291 of 2024** ``` 8 ``` execution of the bond; (v) The petitioner shall furnish his present address and permanent address, and his mobile phone number to the court below and 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 ``` 9 ``` ## **B.A. No.1291 of 2024** 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/-** **C.S.DIAS, JUDGE** rmm/11/3/2024