G. Gireesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 BAIL APPL. NO. 693 OF 2024** **CRIME NO.203/2022 OF Kasaba Police Station, Palakkad, Palakkad AGAINST THE JUDGMENT DATED 21.11.2022 IN Bail Appl. 5023/2022 OF HIGH COURT OF KERALA** ## **PETITIONER/ACCUSED NO.8:** G. GIREESH, AGED 41 YEARS, S/O. GANESH, VALLEKKULAM, PALLATHERI P.O., PALAKKAD DISTRICT, PIN – 678 007 BY ADVS. NIKITA J. MENDEZ P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI SRUTHY N. BHAT RAHUL SUNIL SRUTHY K.K SOHAIL AHAMMED HARRIS P.P. ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682 031 BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28) ADGP SRI GRASHIOUS KURIAKOSE, SR PP SRI C K SURESH THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **..2..** ## **B.A.No.693 of 2024** ## **C.S.DIAS, J.** **----------------------------------------------------Bail Application No. 693 of 2024 -----------------------------------------------------Dated this the 8[th] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure by the eighth accused in Crime No.203 of 2022 registered by the Kasaba Police Station, Palakkad, alleging the accused (9 in number) to have committed the offences punishable under Sections 120(b), 109, 118, 324, 326, 307, 302, 465, 471, 201 read with Section 34 of the Indian Penal Code and Section 27(3) read with Section 7(a) of the Arms Act. The petitioner was arrested on 06.05.2022. 2. Heard Smt.Nikita J.Mendez, the learned counsel appearing for the petitioner and Sri.Gashious Kuriakose, the learned Additional Director General of Prosecution. **..3..** ## **B.A.No.693 of 2024** 3. 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 petitioner has been in judicial custody since 06.05.2022. It is solely on the basis of the statement of CW18 that the petitioner has been implicated in the crime. The investigation in the case is complete and the Final Report has been laid and the case stands posted for framing of charge. By orders in B.A.Nos.10247 of 2023, 2252 of 2023, 4176 of 2023 and 10529 of 2023, the accused Nos.7, 4, 6 and 5 respectively have been enlarged on bail by this Court on the specific finding that no specific overt act alleged against those accused, that the investigation in the case is complete and that the further detention of those accused was not necessary. Since the petitioner is at par with those accused, he is entitled to a similar order. Hence, the application **..4..** ## **B.A.No.693 of 2024** may be allowed. 4. The learned Additional Director General of Prosecution seriously opposed the application. He contended that there is a specific overt act against the petitioner. The petitioner is a person having criminal antecedents. In addition to the same, the orders passed by this Court in the above bail applications have been challenged before the Honourable Supreme Court and the appeals are pending consideration. Therefore, the application may be dismissed. 5. The gist of the prosecution allegation is that, the accused 1 to 3 took swords and cut the legs and different parts of the body of the deceased and inflicted 74 injuries on him, which led to his death. The specific allegation against the petitioner is that CW18 had stated that the petitioner was found talking to the other accused. Therefore the murder **..5..** ## **B.A.No.693 of 2024** was committed in furtherance of the common intention between the accused. 6. 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 a punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 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. **..6..** ## **B.A.No.693 of 2024** 8. 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. 9. On a consideration of the facts, the materials placed on record, the rival submissions made across the bar, and especially on comprehending the fact that the accused 7, 4, 6 and 5 have been enlarged on bail by this Court and the petitioner stands at par with the said accused, that the investigation in the case is practically complete, recovery has been effected and there is no specific overt act alleged against them in committing the murder of the deceased, I am of the firm view that the petitioner is also entitled to be released on bail. **..7..** ## **B.A.No.693 of 2024** Hence, I am inclined to allow the bail applications, but subject to stringent conditions: 7. In the result, the application is allowed, by directing the petitioner to be released on bail on his executing a bond for Rs.1,00,000/- (Rupees One lakh 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 Saturdays between 9 a.m. and 11 a.m till the conclusion of trial and as ordered by the trial court. (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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; **..8..** ## **B.A.No.693 of 2024** (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. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. **Sd/-** **C.S.DIAS JUDGE** **PR** **..9..** ## **B.A.No.693 of 2024** ## **APPENDIX OF BAIL APPL. 693/2024** PETITIONER ANNEXURES Annexure-1 TRUE COPY OF THE ORDER DATED 13-052022 IN CMP. NO.1823/2022 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I PALAKKAD Annexure-2 TRUE COPY OF THE ORDER DATED 21-112022 IN B.A.NO.5023/2022 BEFORE THIS HON'BLE COURT Annexure-3 TRUE COPY OF THE ORDER DATED 09-012024 IN B.A. NO. 10247/2023 OF THIS HON'BLE COURT Annexure-4 TRUE COPY OF THE COMMON ORDER DATED 17-01-2024 IN B.A. NOS. 2252/2023, 4176/2023 AND 10529/2023