Himasagar K. P. v. State of Kerala; Akash T. S. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5399 OF 2024 ``` ``` CRIME NO.562/2024 OF PARAPPANANGADI POLICE STATION, MALAPPURAM PETITIONER/ACCUSED NO.1: ``` ``` HIMASAGAR K. P, AGED 30 YEARS KIZHAKKE VALAPPIL HOUSE, NAYARAMBALAM, VYPIN P.O., ERNAKULAM, PIN - 682508 BY ADVS. SRI.AJAY KRISHNAN S. SRI.SAISANKAR.S ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE S.H.O, PARAPPANAGADI POLICE STATION, MALAPPURAM DISTRICT, PIN – 676303 ``` ``` BY SR.PP.SRI.C.S.HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.08.2024, ALONG WITH B.A.NO.5623/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A.Nos.5399 and 5623 of 2024 ``` ``` 2 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 BAIL APPL. NO. 5623 OF 2024 ``` ``` CRIME NO.562/2024 OF PARAPPANANGADI POLICE STATION, ``` ## **`MALAPPURAM`** ## **`PETITIONER:`** ``` AKASH T. S, AGED 30 YEARS S/O. SUDHAKARAN., THIRUNILATH HOUSE., MALIPURAM , VYPIN P.O, PIN - 682508 BY ADVS. SRI.AJAY KRISHNAN S. SRI.SAISANKAR.S ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2THE S.H.O, PARAPPANAGADI POLICE STATION MALAPPURAM DISTRICT, PIN – 676303 ``` ## **`BY SR.PP.SMT.SEETHA S.`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.08.2024, ALONG WITH B.A.NO.5399/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A.Nos.5399 and 5623 of 2024 ``` ``` 3 ``` ## **`COMMON ORDER`** ## **Dated this the 01[st] day of August, 2024** The applications are filed under Section 483 of the Bharatiya Nagarik Surksha Sanhitha, 2023, by the accused 1 and 2 in Crime No.562/2024 of the Parappanangadi Police Station, Malappuram, which is registered against them for allegedly committing the offences punishable under Sections 363 and 307 read with Section 34 of the Indian Penal Code, 1860 (for short, ‘IPC’) and Sections 27(1) and 25(3) of the Arms Act. Subsequently, Sections 143, 147, 148, 341, 323, 324, 427, 506(ii), 120(B) read with Section 149 of the IPC were incorporated. The petitioners were arrested and remanded to on judicial custody 20.05.2024. 2. B.A.No.5399/2024 is filed by the 1[st] accused and B.A.No.5623/2024 is filed by the 2[nd] accused. As ``` B.A.Nos.5399 and 5623 of 2024 ``` ``` 4 ``` the applications arise out of the same crime, they are consolidated, jointly heard and are being disposed of by this common order. 3. The prosecution case, in brief, is that; on 19.05.2024, at around 19.00 hours, the accused, in prosecution of their common intention, had formed themselves into an unlawful assembly armed with deadly weapons and they intercepted the vehicle bearing No. KL-65-V/0075, in which the defacto complainant was travelling, and smashed the windscreen of the car. Thereafter, they intimidated the defacto complainant by pointing a gun at him and hacked his friend with a sword, and abducted another of his friends. Thus, the accused have committed the above offences. 4. Heard; Sri.Ajay Krishnan.S, the learned counsel appearing for the petitioners, and Sri.C.S. Hrithwik, and Smt.Seetha S., the learned Senior ``` B.A.Nos.5399 and 5623 of 2024 ``` ``` 5 ``` Public Prosecutors. 5. The learned counsel appearing for the petitioners submitted that the petitioners are innocent of the accusations levelled against them. They have been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Section 307 of the IPC to see that the petitioners are denied bail. There is no material to substantiate that the petitioners have committed the offcences under Sections 363 and 307 of the IPC as alleged by the prosecution. In any given case, the petitioners have been in judicial custody for the last 72 days, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioners may be enlarged on bail. 6. The learned Public Prosecutors opposed the applications. They submitted that the 2[nd] accused is a habitual offender since, he is involved in four other ``` B.A.Nos.5399 and 5623 of 2024 ``` ``` 6 ``` crimes. The petitioners have committed a very serious crime, by inflicting serious injuries on the defacto complainant. If the petitioners are enlarged on bail, there is every likelihood of them tampering the evidences and intimidating the witnesses. Hence, the applications may be dismissed. 7. The prosecution allegation against the petitioners is that, in prosecution of their common intention, they intercepted the vehicle of the defacto complainant and assaulted his friend with a sword and inflicted grievous injuries on him. Eventhough, the prosecution alleges that the 2[nd] accused is a person with criminal antecedents, on going through the materials on record, it is seen that the two crimes are of the years 2022 and 2023, which are registered against him under Section 151 of the Code of Criminal Procedure. The other two crimes are of the years 2020 and 2022. The fact remains that the petitioner ``` 7 ``` ## **`B.A.Nos.5399 and 5623 of 2024`** has been in judicial custody for the last 72 days, the investigation in the case is complete and recovery has been effected. 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 an antecedent, 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 **State of Kerala v. Raneef** [(2011) 1 SCC 784], the Honourable Supreme Court has declared ``` B.A.Nos.5399 and 5623 of 2024 ``` ``` 8 ``` 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. 11. The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 12. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into consideration the fact that the petitioners have been in judicial custody for the last 72 days, the investigation in the case is complete and recovery has been effected, I am of the definite view that the ``` 9 ``` ## **`B.A.Nos.5399 and 5623 of 2024`** petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail applications, but subject to stringent conditions. In the result, the applications are allowed, by directing the petitioners to be released on bail on them 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 petitioners shall appear before the Officer on - Investigating every Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer as and when required; - (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 ``` B.A.Nos.5399 and 5623 of 2024 ``` ``` 10 ``` 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 execution of the bond. If they have no passports, they shall file affidavits 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 ``` B.A.Nos.5399 and 5623 of 2024 ``` ``` 11 ``` effect recoveries on the information, if any, given by the petitioners even while the petitioners are 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** **C.S.DIAS** NAB