Elwin Jose v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2079 OF 2024 ``` ``` CRIME NO.0031/2024 OF THRISSUR E.E., THRISSUR ``` ``` AGAINST THE ORDER DATED 07.03.2024 IN CRMP NO.2134 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THRISSUR ``` ## **`PETITIONER/ACCUSED 3:`** ``` ELWIN JOSE, AGED 30 YEARS S/O JOSE,CHAMANAT HOUSE, CHANAPATTA VAZHI,VADOOKKARA DESOM, KOORKKANCHERY VILLAGE,THRISSUR, PIN - 680007 ``` ``` BY ADVS. JITHIN BABU A ARUN SAMUEL ``` ## **`RESPONDENT/STATE OF KERALA:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SRI. C.S. HRITHWIK. SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2079 of 2024** ``` 2 ``` ## **Dated this the 27[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 third accused in Crime No.31/2024 of the East Police Station, Thrissur, registered against the accused (three in number) for allegedly committing the offences under Sections 341, 326, 324, 308, 448 and 427 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 06.03. 2024. 2. The crux of the prosecution case is that; on 31.12.2023, at about 23.00 hours, the accused 1 to 3, in furtherance of their common intention, trespassed into a hotel and wrongfully restrained the defacto complainant, and the first accused hit him with an iron rod, causing a fracture to his hand, and the accused 2 and 3 assisted the first accused to inflict the injury. Had the defacto complainant not evaded the attack, he would have lost **B.A. No.2079 of 2024** ``` 3 ``` his life. The accused also committed mischief in the premises of the defacto complainant, which resulted in a loss of Rs. 50,000/- to him. Thus, the accused have committed the above offences. 3. Heard; Sri. A.Jithin Babu, learned counsel appearing for the petitioner and Sri. C.S. Hrithwik. the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel 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 offences under Sections 326 and 308 will not be attracted against the petitioner. The Investigating Officer has deliberately incorporated Section 34 of the IPC to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody since 06.03.2024, the investigation in the case, so far as the petitioner is concerned, is complete, and the **B.A. No.2079 of 2024** ``` 4 ``` recovery has been effected. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the accused 1 and 2 had demolished the glass door of the hotel, and the first accused hit the defacto complainant with an iron rod. Nonetheless, he conceded to the fact that the wound certificate has been received, the weapon has been recovered, and the CCTV footage has been collected. However, he submitted that if the petitioner is released on bail, it would send a wrong message to the society. Hence, the application may be dismissed. 6. On an evaluation of Annexure A1 FIR and the materials placed on record, it is evident that it was the first accused who inflicted the injury on the defacto complainant, which resulted in a fracture of his hand. In **B.A. No.2079 of 2024** ``` 5 ``` addition to the same, it was the accused 1 and 2 who also committed the alleged mischief in the premises. The alleged overt act against the petitioner is that he assisted the accused 1 and 2 to commit the above offences. 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 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 discretion of the court, it has to be evaluated based on ``` 6 ``` ## **B.A. No.2079 of 2024** 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. On an anxious consideration of the facts, the materials placed on record, and the rival submissions made across the Bar, especially on prima facie finding that there is no specific overt act alleged against the petitioner so as to attract the offences under Sections 326 and 308 of the IPC, that the petitioner has been in judicial custody for the last 22 days, that the investigation in the case, so far as the petitioner is ``` 7 ``` ## **B.A. No.2079 of 2024** concerned, is practically complete, and that the 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. 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 make any inducement, threat or procure to any person ``` 8 ``` ## **B.A. No.2079 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) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Thrissur, without the permission of the jurisdictional court. - (vi) In case of violation of any of the conditions ``` 9 ``` ## **B.A. No.2079 of 2024** 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 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].** mtk/27.03.24 ## **C.S.DIAS, JUDGE** ``` 10 ``` ## **B.A. No.2079 of 2024** ## **`APPENDIX OF BAIL APPL. 2079/2024`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE 1TRUE COPY OF THE FIR IN CRIME NO. 31/2024 OF THRISSUR EAST POLICE STATION, THRISSUR DISTRICT ``` ``` ANNEXURE 2A TRUE COPY OF THE ORDER DATED 07/03/2024 IN CRL. M.P. NO. 2134/2024 BY JFCM-I, THRISSUR ```