Ebin v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1789 OF 2024 ``` ``` CRIME NO.238/2024 OF ERAVIPURAM POLICE STATION, Kollam ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.281 OF 2024 OF DISTRICT COURT & SESSIONS COURT,KOLLAM PETITIONER/ACCUSED NO.2: ``` ``` EBIN, AGED 37 YEARS S/O.EDVIN, CHANNANDAZHIKAM, KOTTURPADINJATTATHIL, THEKKUMBAGAM CHERRY ,ERAVIPURAMVILLAGE,KOLLAM (ERAVIPURAM POLICE STATION LIMIT), PIN - 691011 ``` ``` BY ADV C.K.SREEJITH ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.1789 of 2024** ``` 2 ``` ## **Dated this the 19[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 second accused in Crime No.238/2024 of the Eravipuram Police Station, Kollam, registered against the accused (five in number), for allegedly committing the offences punishable under Secs. 143, 147, 148, 294(b), 323, 324, 506(ii) and 307 read with Section 149 of the Indian Penal Code. The petitioner was arrested on 12.2.2024. 2. The crux of the prosecution case is that: on 11.2.2024 at around 19.50 hours, the accused in prosecution of their common intention to murder the de facto complainant (injured), formed an unlawful ``` 3 ``` ## **B.A. No.1789 of 2024** assembly, attacked the injured with a chopper and caused grievous injuries to him. When the injured's friend named Jayesh attempted to intervene in the matter, the accused manhandled him also. The accused had also criminally intimidated the injured and uttered obscene words. Thus, the accused have committed the above offences. 3. Heard; Sri.Sreejith C.K., the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, 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 has been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Sec.307 of the IPC to deny bail to the petitioner. A reading of the wound certificate would establish that the injured had not suffered any serious **B.A. No.1789 of 2024** ``` 4 ``` injuries as alleged by the prosecution. Notwithstanding the above contentions, the petitioner has been in judicial custody since 12.2.2024, the investigation in the case is practically complete, recovery has been effected and the petitioner has no criminal antecedents. The first accused has already been enlarged on bail by this Court as per the order in B.A. No.1660/2024 dated 13.3.2024. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the accused has committed a heinous crime and the investigation is in progress. He made available the accident register cum wound certificate of the injured to substantiate the fact that the injured had suffered contusion and lacerations on the left and right forearms. Nonetheless, he conceded to the fact that the specific overt act was alleged against the first accused, who has already been enlarged on ``` 5 ``` ## **B.A. No.1789 of 2024** bail by this Court in B.A.No.1660/2024. 6. The crux of the prosecution allegation is that the accused in prosecution of their common intention, assaulted and caused grievous injuries to the de facto 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 ``` 6 ``` ## **B.A. No.1789 of 2024** 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. 10. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, especially after taking into account the fact that the petitioner has been in judicial custody since 12.2.2024, the investigation in the case is practically complete, and recovery has been ``` 7 ``` ## **B.A. No.1789 of 2024** effected, and further that the first accused has already been enlarged on bail as per the order in B.A. No.1660/2024, I am of the definite 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.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 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 ``` 8 ``` ## **B.A. No.1789 of 2024** 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 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. ``` 9 ``` ## **B.A. No.1789 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]. ## **`SD/-`** **C.S.DIAS, JUDGE** rmm19/3/2024