High Court of KeralaSingle JudgeBail granted; the petitioner released on bail w...

Deb Prasad Mukhergee v. State of Kerala

Case / Petition Number:BAIL APPL. NO. 5321 OF 2024

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S.Dias
Judgment Date
2024-07-23
Court Decision / Holding
The application is allowed; the petitioner Deb Prasad Mukhergee is to be released on bail on a bond of Rs. 1,00,000 with two solvent sureties for similar amounts, subject to conditions: (i) appearance before the Investigating Officer on alternate Saturdays; (ii) no inducement or threat to the victim or witnesses; (iii) no commission of any offence while on bail; (iv) surrender of passport or affidavit if none; (v) restriction on entering the victim’s taluk except for reporting to the IO; (vi) power to cancel bail on violation; (vii) courts may entertain modifications of bail conditions; (viii) IO may continue investigation and recoveries as permitted by law. The order also states that the observations are for deciding the bail petition and not an expression on merits of the case.
Final Disposition
Bail granted; the petitioner released on bail with specified conditions.

Parties to the Case

Appellants / Petitioners

  • Deb Prasad Mukhergee

Respondents

  • State of Kerala, represented by Public Prosecutor, High Court of Kerala
  • SR.PP.SMT.SEETHA S.

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv JERRY MATHEW

Counsels for Respondents

  • • Smt.Seetha S.

Case Synopsis & Summary

This is a bail petition filed under section 439 CrPC by Deb Prasad Mukhergee, the sole accused in Crime No. 295/2024 of Rajakkad Police Station, Idukki, for alleged rape of the victim on 18.04.2024, offences under IPC sections 376(1) and 376(2)(f). The accused, relative of the victim’s husband, was arrested on 12.05.2024 and has since been in judicial custody for over two months. The investigation reportedly is complete, the medical examinations have been conducted, and the final report was laid on 03.07.2024. The petitioner contends innocence and lack of material tying him to the acts, urging that continued detention is unnecessary given absence of criminal antecedents. The State/Prosecutor opposes bail, arguing the offences are heinous and there is a real risk of intimidation, witness tampering, and interference with evidence if released. The court anchors its decision in established bail principles from Dataram Singh and State of Kerala v. Raneef, Hussainara Khatoon I, and the Article 21 framework, emphasizing that bail is the rule and jail is the exception, and that rights of the accused must be balanced with public interest. Considering the two months’ custody, completed investigation, final report, and lack of prior convictions, the judge allows bail subject to conditions including a Rs.1,00,000 bond with two solvent sureties, regular appearances, non-inducement of witnesses, travel restrictions, passport surrender, reporting requirements, and potential for cancellation on breach. The order clarifies that these observations pertain to the bail petition only and do not decide merits of the case.

Provisions of Law Cited

Sec.439 of the Code of Criminal Procedure, 1973Sections 376(1) and 376(2)(f) IPCArticle 21, Constitution of India

Legal Doctrines & Maxims

  • Bail is the rule and jail is the exception (on the touchstone of Article 21)
  • Right to life under Article 21 of the Constitution
  • The procedure that keeps large numbers of people behind bars without trial for long is unreasonable and unfair (Hussainara Khatoon (I) v. Home Secy.)
  • Observations in this order are for the bail petition only and not on merits
  • Discretion to grant bail must be exercised in a judicious and compassionate manner (as per Dataram Singh)
  • Right to bail cannot be denied merely due to societal sentiments

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues innocence and lack of material linking him to the crime. He asserts that the victim has been falsely implicated, there is no direct evidence of his involvement, and he has already spent over two months in judicial custody. He notes completion of investigation and filing of the final report, and he highlights the absence of any criminal antecedents. He contends that detention is unnecessary and calls for enlargement on bail, emphasizing that the ongoing societal fear should not override the fundamental presumption of innocence and the constitutional right to liberty.

Contentions of Respondents

The State submits that the accused committed a heinous offence of rape and that releasing him on bail could lead to intimidation of the victim and witnesses and tampering with evidence. It acknowledges the completion of investigation and the laying of the final report, but maintains that the risk of interference justifies denial of bail at this stage. The State urges careful scrutiny of bail conditions and reliance on established jurisprudence to ensure the integrity of the investigation and the trial.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Dataram Singh v. State of U.P.(2018) 3 SCC 22PositiveUsed to state that bail is the rule and jail is the exception, with discretion to be exercised judiciously and compassionately.
State of Kerala v. Raneef(2011) 1 SCC 784PositiveCited to reaffirm that indefinite detention of undertrial prisoners infringes Article 21.
Hussainara Khatoon (I) v. Home Secy., State of Bihar(1980) 1 SCC 81PositiveCited for the principle that long incarceration without trial is unreasonable and violates Article 21.
Sushila Aggarwal v. State (NCT of Delhi) and another2020 (1) KHC 663PositiveCited for the proposition that Investigating Officers may continue to investigate even while bail is granted, as recognized by the court.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946** **BAIL APPL. NO. 5321 OF 2024** **CRIME NO.295/2024 OF Rajakkad Police Station, Idukki** **AGAINST THE ORDER/JUDGMENT DATED 11.06.2024 IN CRMC NO.456 OF 2024 OF DISTRICT COURT & SESSIONS COURT,THODUPUZHA PETITIONER/S:** **DEB PRASAD MUKHERGEE, AGED 21 YEARS C/O BLACKBERRY RESORT, POTHAMEDU, MUNNAR, KDH VILLAGE, IDUKKI, KERALA, PIN - 685613** **BY ADV JERRY MATHEW** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031** **SR.PP.SMT.SEETHA S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **23.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C.S.DIAS,J** ## **-------------------------------------------Bail Application No.5321 of 2024 --------------------------------------------Dated this the 23[rd] day of July, 2024** ## **ORDER** The application is filed under Sec.439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.295/2024 of the Rajakkad Police Station, Idukki, which is registered against him, for allegedly committing the offences punishable under Sections 376(1) and 376(2) (f) of the Indian Penal Code (in short, 'IPC'). The petitioner was arrested and remanded to judicial custody on 12.05.2024. 2. The gist of the prosecution case is that: on 18.04.2024, at around 10.30 hours, the accused, who is the relative of the husband of the victim, committed rape on her in a rented premises. Thus, the accused has committed the above offences. 3. Heard; Sri.Jerry Mathew, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. BAIL APPL. NO. 5321 OF 2024 3 4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. There is no material to substantiate the petitioner's involvement in the crime. The victim has falsely implicated the petitioner in the case on a misconception of facts. In any given case, the petitioner has been in judicial custody for the last more than 2 months, the investigation in the case is complete and the final report has been laid. Moreover, the petitioner does not have any criminal antecedents. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner has committed a very heinous offence. If the petitioner is released on bail, there is every likelihood of him intimidating the victim and the witnesses and tampering with the evidence. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the investigation in the case is complete and the final BAIL APPL. NO. 5321 OF 2024 4 report has been laid on 03.07.2024 and that the petitioner does not have any criminal antecedents. 6. The prosecution case is that the petitioner had trespassed into the house of the victim and committed rape on her. Indisputably, the petitioner has been in judicial custody for the last more than two months, the investigation in the case is complete, the medical examinations have been conducted and the final report has been laid on 03.07.2024. 7. 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. 8. In **State of Kerala v. Raneef,** [(2011) 1 SCC 784], the Honourable Supreme Court has declared that BAIL APPL. NO. 5321 OF 2024 5 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. 9. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 10. 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 BAIL APPL. NO. 5321 OF 2024 6 judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last more than two months, the investigation in the case is complete, medical examinations have been conducted and the final report has been laid, and further that the petitioner does not have any criminal antecedents, I am of the firm view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction BAIL APPL. NO. 5321 OF 2024 7 of the court having jurisdiction, which shall be subject to the following conditions: - i. The petitioner shall appear before the Investigating Officer on every alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No. 295/2024. - ii. The petitioner shall not directly or indirectly make any inducement or threat to the victim or her witnesses 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 execution of the bond; BAIL APPL. NO. 5321 OF 2024 8 - v. The petitioner shall not enter the Taluk where the victim and the witnesses are residing till the conclusion of the trial in Crime No.295/2024, other than for the purpose of reporting before the Investigating Officer; - 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. - vi. Application 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]. - viii. The observations made in this order are only for the purpose of considering the application and the BAIL APPL. NO. 5321 OF 2024 9 same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- rkc/23.07.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 5321 OF 2024 10 ## **APPENDIX OF BAIL APPL. 5321/2024** ## **PETITIONER ANNEXURES** **Annexure-1** **ORDER PAASED BY THE TRIAL COURT ON 11TH JUNE 2024**