Gino Babu v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 6109 OF 2024 ``` ``` CRIME NO.458/2024 OF KURAVILANGADU POLICE STATION, KOTTAYAM AGAINST THE ORDER/JUDGMENT DATED 17.07.2024 IN CMP NO.2233 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PALA PETITIONER/ACCUSED: ``` ``` GINO BABU, AGED 37 YEARS S/O BABU KURUVILA, RESIDING IN THE ADDRESS MANKOOTTATHIL HOUSE, KURUVILANGAD P O, KOTTAYAM DISTRICT, PIN - 686633 ``` ``` BY ADV G.SREEKUMAR (CHELUR) ``` ## **`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 05.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **B.A. No.6109 of 2024** ``` 2 ``` ## **Dated this the 5[th] day of August, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 ( in short, Code), by the first accused in Crime No.458/2024 of the Kuravilangadu Police Station, Kottayam, which is registered against the accused for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324, 325, 326, 308 and 392 r/w Section 34 of the Indian Penal Code. The petitioner had surrendered and was remanded to judicial custody on 09.07.2024. 2. The gist of the prosecution case is that; on 09.05.2024, at around 14 hours, the accused, in furtherance of their common intention, the first accused uttered obscene words at the father of the de facto **B.A. No.6109 of 2024** ``` 3 ``` complainant (injured) and kicked on his chest and wrongfully restrained him with an intention to commit culpable homicide. Thereafter, he hit on the injured near his left eye and right leg using a wooden stick and he suffered serious injuries. Thereafter, the accused snatched away his mobile phone. It is only because the injured warded off the attack, he did not lose his life. When the de facto complainant attempted to take the injured to the hospital, the second accused took away the key of the scooter. Thus, the accused have committed the above offences. 3. Heard; Sri.G.Sreekumar, the learned counsel appearing for the petitioner and Sri.C.S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The **B.A. No.6109 of 2024** ``` 4 ``` Investigating Officer has deliberately incorporated Sections 326, 308 and 392 of IPC, to see that the petitioner is incarcerated. In fact, the petitioner has approached this Court and filed B.A. No. 4625/2024 under Section 438 of the Code for an order of pre-arrest bail. By Annexure III order, this Court dismissed the application and directed the petitioner to surrender before the Investigating Officer. Even though the petitioner surrendered before the Investigating Officer, he was arrested and subsequently remanded to judicial custody. Although he filed an application before the jurisdictional Magistrate, the same was dismissed by Annexure V order. The petitioner has been in judicial custody for the last 28 days, the investigation in the case is complete and recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed. ``` 5 ``` ## **B.A. No.6109 of 2024** 5. The learned Public Prosecutor opposed the application. He submitted 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. Nonetheless, he did not dispute the fact that investigation in the case is complete and the final report has been laid on 15.7.2024 and the petitioner does not have any criminal antecedents. 6. The prosecution allegation against the petitioner is that, he along with the second accused had assaulted the injured with a wooden stick and caused grievous injuries to him and, thereafter, he snatched away the mobile phone of the injured. The fact remains that the petitioner has been in judicial custody for the last 28 days, the investigation in the case is complete and final report has been laid on 15.7.2024. Furthermore, the petitioner does not have any criminal antecedents. **B.A. No.6109 of 2024** ``` 6 ``` 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 the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. ``` 7 ``` ## **B.A. No.6109 of 2024** 9. In bail applications, generally, it has been laid down from the earliest times that, the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 10. On an anxious consideration of 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 28 days, the investigation in the case is complete and the final report has been laid, I am of the ``` 8 ``` ## **B.A. No.6109 of 2024** view that the petitioner’s further detention is unnecessary. 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 ``` 9 ``` ## **B.A. No.6109 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) 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 **B.A. No.6109 of 2024** ``` 10 ``` accordance with law. (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/-** rmm/5/8/2024 **C.S.DIAS, JUDGE**