Joby v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945** **BAIL APPL. NO. 1001 OF 2024** **CRIME NO.8/2024 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** **JOBY AGED 30 YEARS S/O JOY, RAJI BHAVAN, NEAR KACHANI UPS, KACHANI WARD, VATTIYOORKKAVU VILLAGE, THIRUVANANTHAPURAM, NOW RESIDING AT PRINCIPAL QUARTERS, E20, MEDICAL COLLEGE WARD, ULLOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695011** ## **BY ADV LATHEESH SEBASTIAN** ## **RESPONDENT/STATE & COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **OTHER PRESENT:** **PP SMT SHYNI V O** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.1001 OF 2024** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the fifth accused in crime No.8/2024 of the Museum Police Station, Thiruvananthapuram registered against the accused (nine in number and five other identifiable persons) for allegedly committing the offences punishable under Secs.109, 143, 147, 148, 149, 294(b), 323, 394, 427, 436, 452, 506(ii) of the Indian Penal Code and Section 27 of the Arms Act. The petitioner was arrested on 06.01.2024. 2. The prosecution case, in brief, is that: the accused and five identifiable persons trespassed into the house of the defacto-complainant on 02.01.2024 at around 12.30 a.m and accused 1 to 4 destroyed the wooden almirah, the accused 1, 2 and 5 destroyed the television sets, which was in the house **BAIL APPL.NO.1001 OF 2024** **3** of the defacto-complainant and robbed the mobile phone of the wife of the defacto-complainant, and the first accused uttered abusive words and intimidated the defactocomplainant while the other accused destroyed the windows and threw beer bottles inside the house and caused a fire, and in the fire, several articles in the house got damaged. The accused also destroyed the scooter and the motorcycle, causing a total loss of Rs.3 lakh to the defacto-complainant. Thus, the accused have committed the above offences. 3. Heard; Sri.Latheesh Sebastian, the learned counsel appearing for the petitioner and Smt.Shyni V.O., the learned Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. Even if the allegations in the FIR are taken on its face **BAIL APPL.NO.1001 OF 2024** **4** value, the same will not constitute the offences alleged against the petitioners. There is no specific overt act alleged against the petitioner. Going by the prosecution allegation, it was the accused 1 to 4 who have caused damages to the house. In connection with the same incident, another crime was registered as crime No.9/2024 of the same Police Station, as against the petitioner and the other accused. By order dated 12.02.2024 in B.A.No.1002/2024, this Court has released the petitioner on bail, particularly taking note of the fact that the petitioner has been in judicial custody since 06.01.2024. In the light of the above order, the petitioner is entitled to be released on bail in this case also. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She contended that there are specific overt acts alleged against the petitioner. The petitioner along with **BAIL APPL.NO.1001 OF 2024** **5** accused 1 and 2 had caused extensive damage to the house of the defacto-complainant. She further submitted that the investigation in the case is in progress and that the recovery is to be effected. If the petitioner is let off on bail, there is every likelihood of him intimidating the witnesses and tampering with evidence. Nonetheless, she conceded to the fact that this Court has enlarged the petitioner on bail in the connected case, namely, crime No.9/2024 of the Museum Police Station, Thiruvananthapuram and also that recovery has been effected. 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 **BAIL APPL.NO.1001 OF 2024** **6** 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. 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. After bestowing my anxious consideration to the **BAIL APPL.NO.1001 OF 2024** **7** facts, the materials placed on record, rival submissions across the Bar, especially after going through the findings of this Court in B.A.No.1002/2024 which arises out of a connected case registered by the very same police station wherein this Court has already enlarged the petitioner, that the investigation in the case is at fag end, that recovery has been effected and petitioner has been in judicial custody since 06.01.2024, which is 34 days, I am of the definite view that the petitioner's continued detention is unnecessary. Hence, I am inclined to allow the bail application. 10. In the result, the application is allowed, by directing the petitioner to be released on bail on him 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: **BAIL APPL.NO.1001 OF 2024** **8** - (i) The petitioner shall appear before the Officer on - Investigating every Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is laid, whichever is earlier. 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 them 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 **BAIL APPL.NO.1001 OF 2024** **9** 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 petitioners 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** **shg**