Gireeshan Asari v. State

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 ``` ``` BAIL APPL.NO.5805 OF 2024 ``` ``` CRIME NO.354/2024 OF Malayinkeezh Police Station, ``` ## **`Thiruvananthapuram`** ``` ------------------- ``` ## **`PETITIONER/2ND ACCUSED :-`** ``` GIREESHAN ASARI, AGED 38 YEARS S/O. GOPI ASARI, YESODA BHAVAN, ALANTHARAKONAM, PANGODU WARD, VILAVOORKKAL, THIRUVANANTHAPURAM, PIN - 695 571 ``` ``` BY ADV M.R.SARIN ``` ## **`RESPONDENT/STATE :-`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 THE STATION HOUSE OFFICER, MALAYINKEEZHU POLICE STATION, THIRUVANANTHAPURAM, PIN - 695 571`** ``` BY SMT.NEEMA T.V., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BAIL APPL.NO.5805 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 24th day of July, 2024** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the 2[nd] accused in Crime No.354/2024 of the Malayinkeezh Police Station, Thiruvananthapuram, which is registered against the accused, for allegedly committing the offences punishable under Sections 452, 324, 326, 342 and 308 r/w Section 34 of the Indian Penal Code. The petitioner was arrested and remanded to judicial custody on 06.05.2024. 2. The essence of the prosecution case is that; on 04.05.2024, at around 20:30 hrs., the accused, in furtherance of their common intention, trespassed into the house of the de facto complainant with dangerous weapons, attacked the de facto complainant and his two friends and attempted to murder the de facto complainant. In the said process, the accused inflicted grievous injuries on them. The second accused hit the de facto complainant ``` BAIL APPL.NO.5805 OF 2024 ``` ``` -: 3 :- ``` on his neck with a beer bottle and he suffered a fracture of his neck. The third accused restrained the de facto complainant and the second accused again hit him on his ribs and inflicted grievous injuries. The other accused also assaulted the friends of the de facto complainant. Thus, the accused have committed the above offences. 3. Heard; Sri.M.R.Sarin, the learned counsel appearing for the petitioner and Smt.Neema T.V., 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. He has been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Sections 326 and 308 of the IPC to see that the petitioner is denied bail. The petitioner has been in judicial custody for the last 79 days, the investigation in the case is complete and recovery has been effected. Furthermore, by Annexure A1 order, the ``` BAIL APPL.NO.5805 OF 2024 ``` ``` -: 4 :- ``` accused 1, 3 and 4 have been enlarged on bail by the Court of Session, Thiruvananthapuram. The petitioner is denied bail only on the ground that he has antecedents. The crimes registered against the petitioner are more than ten years old. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner is an inveterate offender since he is involved in four other crimes of a similar nature. The specific overt act is attributed against the petitioner, who hit the de facto complainant with a beer bottle and he suffered a fracture of his neck and ribs. She made available the treatment records of the injured to substantiate the seriousness of the crime. She stated that if the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. ``` BAIL APPL.NO.5805 OF 2024 ``` ``` -: 5 :- ``` 6. The learned counsel for the petitioner refuted the submissions of the learned Public Prosecutor and submitted that the two crimes that are registered against the petitioner are of the year 2014. The other two crimes are of the year 2022. None of the offences are of a similar nature. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 7. The prosecution case is that; on 04.05.2024, the petitioner and the other accused assaulted the de facto complainant and his friends and the petitioner hit the de facto complainant with a beer bottle and he suffered a fracture of his neck and ribs. The said accusation _prima facie_ stands corroborated with the treatment records. Nonetheless, that is a matter to be ultimately investigated and decided at the time of trial. The fact remains that the petitioner has been in judicial custody for the last 79 days, the investigation in the case is complete, recovery has ``` BAIL APPL.NO.5805 OF 2024 ``` ``` -: 6 :- ``` been effected and accused 1, 3 and 4 have been enlarged on bail as per Annexure A1 order by the Court of Session. 8. It is well settled in **Hussainara Khatoon (I)** v. **Home Secy., State of Bihar** [(1980) 1 SCC 81], that merely because a person has antecedents, the same shall not be treated as a ground to deny bail to that person. 9. 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. 10. 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 ``` BAIL APPL.NO.5805 OF 2024 ``` ``` -: 7 :- ``` 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. 11. The principle that bail is the rule and jail is an exception is the touch stone of Article 21 of the Constitution of India. The right to bail cannot be denied merely due to the sentiments of the society. 12. On an overall 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 79 days, the investigation in the case is complete, recovery has been effected and the other accused have already been enlarged on bail, I am of the firm view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the application. ``` BAIL APPL.NO.5805 OF 2024 ``` ``` -: 8 :- ``` 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 on - Investigating Officer every Saturday between 9 a.m. and 11 a.m. till the final report is laid. The petitioner shall also come to appear before the Investigating Officer on every third Saturday between 9 a.m. and 11 a.m. till the conclusion of the trial in Crime No.354/2024. 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 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; ``` BAIL APPL.NO.5805 OF 2024 ``` ``` -: 9 :- ``` - (iii) The petitioner shall not commit any offence while he is on bail; - (iv) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Thiruvananthapuram without the previous permission of the jurisdictional court. - (v) 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; - (vi) 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. ``` BAIL APPL.NO.5805 OF 2024 ``` ## `-: 10 :-` - (vii) Applications for deletion/modification of the bail conditions shall be filed and entertained before 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]. **Sd/C.S. DIAS, JUDGE** Jvt/24.7.2024 ``` BAIL APPL.NO.5805 OF 2024 ``` ``` -: 11 :- ``` ## **`APPENDIX OF BAIL APPL.5805/2024`** ``` PETITIONER ANNEXURES :- ``` ``` Annexure A1TRUE COPY OF THE ORDER IN CRL.M.C NO 1650/2024 BEFORE THE SESSION JUDGE , THIRUVANANTHAPURAM OFFENCES, NEDUMANGAD DATED 01.07.2024 ```