GIREESH, HASHIM, MUBARAK AND MUBEEN v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 ``` ``` BAIL APPL.NO.2556 OF 2024 ``` ``` CRIME NO.339/2024 OF Paravoor Police Station, Kollam ``` ``` ---------------- ``` ## **`PETITIONERS :-`** - **`1 GIREESH, AGED 22 YEARS S/O MANIKANDAN, M.S.NIVAS, TSUNAMI FLAT 23, PARAVUR, PUKKULAM, KOLLAM, PIN - 691 301`** - **`2 HASHIM, AGED 22 YEARS S/O ASRAF, HOUSE NO.248, TSUNAMI FLAT 23, PARAVUR, PUKKULAM, KOLLAM, PIN - 691 301`** - **`3 MUBARAK, AGED 23 YEARS S/O SUDHEER, HOUSE NO.234, TSUNAMI FLAT 23, PARAVUR, PUKKULAM, KOLLAM, PIN - 691 301`** - **`4 MUBEEN, AGED 22 YEARS S/O SUDHEER, HOUSE NO.234, TSUNAMI FLAT 23, PARAVUR, PUKKULAM, KOLLAM, PIN - 691 301`** ``` BY ADV LIJU. M.P ``` ## **`RESPONDENT :-`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ## **`OTHER PRESENT:`** ``` Smt.Neema T V, Sr.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.2556 OF 2024 ``` ``` -: 2 :- ``` ## **Dated this the 4[th] day of April, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by accused Nos.1 to 4 in Crime No.339/2024 of Paravoor Police Station, Kollam registered against the petitioners for allegedly committing the offences punishable under Sections 294(b), 323, 324, 326 and 307 r/w Section 34 of the Indian Penal Code. The petitioners were arrested on 5.3.2024. 2. The crux of the prosecution case is that; on 2.3.2024 at around 21.30 hours, the accused, in furtherance of their common intention, formed themselves into an unlawful assembly and the 1[st] accused with a sword and other accused with hockey sticks assaulted de facto complainant and attempted to murder him. When the paternal uncle of the de facto complainant attempted to intervene in the incident, they attacked him with a hockey stick and caused a fracture on his hand. Thus, the accused have committed the above offences. ``` BAIL APPL.NO.2556 OF 2024 ``` ``` -: 3 :- ``` 3. Heard; Sri. Liju M P, learned counsel appearing for the petitioners and Smt. Neema T. V., learned Senior Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating Officer has deliberately incorporated Sections 326 and 307 of the IPC to deny bail to the petitioners. A reading of Annexures 1 and 5 would substantiate that the above offences are not attracted. In any given case, the petitioners have been in judicial custody since 5.3.2024, the investigation is practically complete and recovery is effected. Moreover, the petitioners do not have any criminal antecedents. Hence, the petitioners may be released on bail. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She stated that if the petitioners are released on bail, there is every likelihood of him tampering with the evidence. Hence, the application may be dismissed ``` BAIL APPL.NO.2556 OF 2024 ``` ``` -: 4 :- ``` nonetheless she conceded to the fact that the petitioners do not have any criminal antecedents. 6. The prosecution allegation against the petitioners is that, the accused, in furtherance of their common intention, had formed an unlawful assembly and attacked the de facto complainant and his paternal uncle with deadly weapons and caused injuries to them. The fact remains that the petitioners have been in judicial custody since 5.3.2024. 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 ``` BAIL APPL.NO.2556 OF 2024 ``` ``` -: 5 :- ``` 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. 9. In **State of Kerala** v. **Raneef** [(2011) 1 SCC 784], the Honourable Supreme Court has declared 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 rival submissions made across the Bar and the materials placed on record, especially considering the fact that the petitioners have been in judicial custody since 5.3.2024 and the investigation is practically complete and recovery is effected and further, the petitioners do not ``` BAIL APPL.NO.2556 OF 2024 ``` ``` -: 6 :- ``` have criminal antecedents, I am of the view that the petitioners' further detention is unnecessary. Hence, I am inclined to allow the application, but subject to conditions. In the result, the application is allowed, by directing the petitioners to be released on bail on their 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 petitioners shall appear before the on - Investigating Officer every Saturday between 9 a.m. and 11 a.m till the final report is laid. - (ii) The petitioners 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 him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (iii) The petitioners shall not commit any offence while they are on bail; - (iv) The petitioners shall surrender their passports, if any, before the court below at the time of ``` BAIL APPL.NO.2556 OF 2024 ``` ``` -: 7 :- ``` execution of the bond. If have no they passports, they 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. - (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** Jvt/4.4.2024 ``` BAIL APPL.NO.2556 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL. 2556/2024`** ## **`PETITIONER ANNEXURES :-`** - **`Annexure 1 TRUE COPY OF THE FIR IN CRIME NO.339/2024 OF PARAVOOR POLICE STATION, KOLLAM`** - **`Annexure 2 TRUE COPY OF THE COMPLAINT MADE BY THE COMPLAINT DATED NIL SUBMITTED BY THE NATIVES OF THE LOCALITY ADDRESSED TO COLLECTOR`** - **`Annexure 3 TURE COPY OF THE RECEIPTS DATED 04.03.24 ISSUED FROM THE OFFICE OF KOLLAM CITY POLICE COMMISSIONER`** - **`Annexure 4 TRUE COPY OF THE RELEVANT PORTION OF PAGE NO.2 OF MALAYALA MANORAMA DAILY NEWS PAPER DATED 05.03.24`** - **`Annexure 5 ORIGINAL ORDER DATED 20.03.24 PASSED IN CRL.M.C NO. 500/24 ON THE FILE OF SESSIONS COURT, KOLLAM`**