# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2874 OF 2024 ``` ``` CRIME NO.267/2024 OF Sreekariyam Police Station, ``` ``` Thiruvananthapuram ``` ``` AGAINST THE ORDER DATED 27.03.2024 IN CMP NO.1126 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THIRUVANANTHAPURAM PETITIONERS/ACCUSED 1, 2, 4 AND 5: ``` ``` 1YADHUKRISHNAN AGED 23 YEARS S/O. MADHUSOODHANAN NAIR, HOUSE NO.78, KARIMADOM COLONY, CHALA P.O., MANACAUD VILLAGE, THIRUVANANTHAPURAM DISTRICT., PIN - 695036 2VIVEK AGED 22 YEARS S/O. RAJENDRAN, T.C.72/2311, KARIMADOM COLONY, CHALA P.O., MANACAUD VILLAGE, THIRUVANANTHAPURAM DISTRICT., PIN - 695036 3SHIBIN AGED 22 YEARS S/O. HAJA, HOUSE NO.170, KADIMADOM COLONY, CHALA P.O., MANACAUD VILLAGE, THIRUVANANTHAPURAM DISTRICT., PIN - 695036 4SULFI AGED 26 YEARS S/O. SUDHEER, T.C. 39/35, KARIMADOM COLONY, CHALA P.O., MANACAUD VILLAGE, THIRUVANANTHAPURAM DISTRICT., PIN - 695036 ``` ``` BY ADV SHAJIN S.HAMEED ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 ``` **B.A. No.2874 of 2024** ``` 2 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2874 of 2024** ``` 3 ``` ## **Dated this the 8[th] day of April, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1, 2 and 5 in Crime No.267/2024 of the Sreekaryam Police Station, Thiruvananthapuram registered against the accused (6 in number) for allegedly committing the offence punishable under Section 307 r/w Section 34 of the Indian Penal Code. The petitioners were arrested on 17.03.2024 2. The essence of the prosecution case is that: on 14.03.20247 at about 13:00 hours, the accused, in furtherance of their intention, to cause the murder of the defacto complainant, the first accused cut the defacto complainant with the sword and caused injuries to him on the rear portion of his neck. The second accused and the child in conflict with the law, also attacked the defacto **B.A. No.2874 of 2024** ``` 4 ``` complainant. The accused 4 and 5, reached the scene of the occurrence and enabled the accused to flee from the scene of occurrence. Thus, the accused have committed the above offences. 3. Heard; Sri. Shajin, S. Hameed., the learned counsel appearing for the petitioners and Smt. Seetha.S, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of Annexure A FIR would substantiate that the petitioners were not named in the above crime. In fact, the crime has been registered only as a retaliatory method adopted by the defacto complainant, who is an accused in Crime No.1597/2023 of the Fort Police Station, Thiruvananthapuram, which is registered against him for committing a similar offence. The accused 1 and 2 are **B.A. No.2874 of 2024** ``` 5 ``` the Cws 6 and 7 in the crime. It is only due to wreak vengeance on them, the present crime has been registered. Moreover, a reading of the accident registercum-would certificate would substantiate that the defacto complainant only suffered a lacerated wound and aberrations on his body. Therefore, the offence under Section 307 would not be attracted. In any given case, the petitioners have been in judicial custody since 17.03.2024, the investigation in the case is practically complete, and the recovery has been effected. Moreover, the petitioners do not have any criminal antecedents. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She also stated that if the petitioners are released on bail, there is every likelihood of them intimidating the witnesses and tampering with the evidence. Nonetheless, she did not dispute the fact that ``` 6 ``` ## **B.A. No.2874 of 2024** there is a case registered against the defacto complainant as Crime No.1597/2023 of the Fort Police Station, wherein the accused 1 and 2 are the Cws 6 and 7. She made available the accident register cum wound certificate dated 14.03.2024, issued by the Medical College Hospital, Thiruvananthapuram, to show the nature of the injuries suffered by the defacto complainant. 6. The prosecution allegation against the petitioners is that the first petitioner inflicted a cut injury on the rear portion of the defacto complainant, and he suffered an injury on the left hand muscle portion and his back. The other accused, along with a child in conflict with the law, enabled the accused to flee from the scene of occurrence. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the2024:KER:11608 Honourable Supreme Court has categorically held that the fundamental postulate of ``` 7 ``` ## **B.A. No.2874 of 2024** 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 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. 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 ``` 8 ``` ## **B.A. No.2874 of 2024** infringement of their right to life guaranteed under Article 21 of the Constitution. 10. On an anxious consideration of the facts, the materials placed on record, and the rival submissions made across the Bar, especially considering the fact that there are cases and countercases registered against the parties, prima facie, the de facto complainant has suffered only lacerated wounds and aberrations, as is seen from the accident register cum would certificate, that the petitioners have been in judicial custody since 17.03.2024, that the investigation in the case is practically complete, that the recovery has been effected, and further that the petitioners have no criminal antecedents, I am of the definite view that the petitioners’ further detention is not necessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing **B.A. No.2874 of 2024** ``` 9 ``` the petitioners to be released on bail on them executing bond for Rs.1,00,000/- (Rupees one lakh only) each with two solvent sureties 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 Investigating Officer on 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 or tamper with the evidence in any manner, whatsoever; ``` 10 ``` ## **B.A. No.2874 of 2024** (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 applications for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. ``` 11 ``` ## **B.A. No.2874 of 2024** (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 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/- ``` mtk/08.04.24 **C.S.DIAS, JUDGE** ``` 12 ``` ## **B.A. No.2874 of 2024** ## **`APPENDIX OF BAIL APPL. 2874/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure-APHOTOCOPY OF THE FIR IN CRIME NO.267/2024 OF SREEKARYAM POLICE STATION. ``` ``` Annexure-B ``` ``` FREE COPY OF THE ORDER DATED 27/03/2024 IN CMP.NO.1126/2024 ON THE FILE OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT-I, THIRUVANANTHAPURAM. ```