DASAN v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5750 OF 2024 ``` ``` CRIME NO.338/2024 OF UPPUTHARA POLICE STATION, IDUKKI AGAINST THE ORDER/JUDGMENT DATED 05.07.2024 IN CRMC NO.542 OF 2024 OF DISTRICT COURT & SESSIONS COURT,THODUPUZHA PETITIONER/ACCUSED: ``` ``` DASAN, AGED 52 YEARS S/O VIJAYAN,PANATHOTTATHIL H,KANNAMPADI, MATHAIPARA KARA, UPPUTHARA VILLAGE, IDUKKI DISTRICT, PIN - 685505 ``` ``` BY ADVS. B.SURJITH RAHANA JOSE LIJO JOSEPH AKSHAYA REGHU ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SRI.C.S. HRITHWIK. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **B.A. No.5750 of 2024** ``` 2 ``` ## **Dated this the 29[th] day of July, 2024 O R D E R** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( in short, BNSS), by the first accused in Crime No.338/2024 of the Upputhara Police Station, Idukki, which is registered against the accused for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324, 307, 506(ii) r/w Section 34 of the Indian Penal Code (IPC). The petitioner was arrested and remanded to judicial custody on 11.06.2024. 2. The essence of the prosecution case is that; on 01.06.2024, the accused, in furtherance of their common intention, and out of the previous animosity towards the de facto complainant, the first accused ## **B.A. No.5750 of 2024** ## **`3`** along with two others, had abused the de facto complainant in obscene language and then pelted a stone on his left leg. Then, the second accused exhorted the first accused to murder the de facto complainant. At that time, the first accused inflicted a cut injury on the de facto complainant with a knife. It is only because the de facto complainant had warded off the attack, he did not lose his life. However, he suffered grievous injury on his left hand vein. Then, the third accused wrongfully restrained the de facto complainant and the second accused emasculated the testicles of the de facto complainant. Thus, the accused have committed the above offences. 3. Heard; Sri.B.Surjith, learned counsel appearing for the petitioner and Sri.C.S.Hrithwik., the learned Senior Public Prosecutor. 4. The learned counsel appearing for the **B.A. No.5750 of 2024** ``` 4 ``` petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Section 307 of the IPC, to see that the petitioner is incarcerated. The petitioner does not have any criminal antecedents. The petitioner has been in judicial custody for the last 49 days, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner may be enlarged on bail. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation in the case is in progress. He contended that there is specific overt act alleged against the petitioner and the second accused who have caused grievous hurt to the de facto complainant. He made available the Accident Register - cum-Wound Certificate of the de facto complainant ``` 5 ``` ## **B.A. No.5750 of 2024** issued by the Taluk Hospital Kattappana, dated 01.06.2024, to demonstrate the nature of injuries suffered by the de facto complainant. He stated that if the petitioner is released on bail, there is every likelihood of him intimidating the witnesses and tampering with evidence. Hence, the application may be dismissed. 6. The prosecution case is that, the accused, in furtherance of their common intention, had wrongfully restrained the de facto complainant and the first accused inflicted a cut injury and the second accused emasculated the testicles of the de facto complainant and he suffered grievous injuries. The said allegation prima facie stands corroborated by the Accident Register-cumWound Certificate referred to above. Nonetheless, these are all matters to be investigated and ultimately decided at the time of trial. The fact remains that the petitioner has been in judicial custody for the last 49 days, the ## **B.A. No.5750 of 2024** ## **`6`** investigation in the case so far the petitioner is concerned, is practically complete and recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. 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 exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on ``` 7 ``` ## **B.A. No.5750 of 2024** 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. 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 petitioner has been in judicial custody for the last 49 days, the investigation in the case so far as the petitioner is concerned is complete and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. ``` 8 ``` ## **B.A. No.5750 of 2024** 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 acquainted with the facts of the case so as to dissuade ``` 9 ``` ## **B.A. No.5750 of 2024** 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 accordance with law. ``` 10 ``` ## **B.A. No.5750 of 2024** (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].** rmm/29/7/2024 **C.S.DIAS, JUDGE**