Kanha Charan Bisoy v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946 ``` ## `BAIL APPL. NO. 5692 OF 2024` ``` CRIME NO.324/2024 OF AMBALAMEDU POLICE STATION, ERNAKULAM ``` ## `PETITIONER:` ``` KANHA CHARAN BISOY AGED 24 YEARS PANIBANDHA, BADULA, DHARAKOTE, BADULA, GANJAM, ODISHA, PIN – 761026 ``` ``` BY ADVS.P.M.HABEEB YESMA D. ELAVANTHARA ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ## `SR PP SMT SEETHA S` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.5692/2024_ _-:2:-_ _Dated this the 22[nd] day of July, 2024_ ## **O R D E R** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the first accused in Crime No.324/2024 of the Ambalamedu Police Station, Ernakulam, which is registered against the accused for allegedly committing the offences punishable under Sections 461 & 394 read with Section 34 of the Indian Penal Code, 1860. The petitioner was arrested and remanded to judicial custody on 03.06.2024. 2. The gist of the prosecution case is that: on 02.06.2024, at around 13.30 hours, the accused, in furtherance of their common intention, entered the hotel of the de-facto complainant and robbed Rs.700/from the cash box. The first accused slapped the de-facto complainant on his face, and the second accused kicked him. Thus, the accused have committed _B.A.No.5692/2024_ _-:3:-_ the above offences. 3. Heard; Sri. P.M.Habeeb, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner's involvement in the case. The petitioner has been in judicial custody for the last 50 days, the investigation in the case is complete, and recovery has been effected. Moreover, the petitioner does not have any criminal antecedents. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the investigation is still in progress. She also stated that the petitioner is a native of Odisha. If the petitioner is _B.A.No.5692/2024_ _-:4:-_ let off on bail, there is every likelihood of him fleeing from justice and committing similar offences. Hence, the application may be dismissed. 6. The prosecution case is that, the petitioner, along with the second accused, had trespassed into the shop of the de-facto complainant and robbed Rs.700/from there. The fact remains that the petitioner has been in judicial custody for the last 50 days, the investigation in the case is practically complete, and the recovery has been effected. Furthermore, I find that the petitioner does not have any criminal antecedents. It is well settled in **Hussainara Khatoon** **(I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], that merely because an accused does not have roots in a State, the same shall not be a ground to deny bail to the accused. 7. In **Sanjay Chandra v. CBI** [2012 1 SCC 40], the Honourable Supreme Court has categorically held _B.A.No.5692/2024_ _-:5:-_ 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 **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. 9. 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. 10. On an overall consideration of the facts, the _B.A.No.5692/2024_ _-:6:-_ rival submissions made across the Bar, and the materials placed on record, and particularly considering the fact that the petitioner has been in judicial custody for the last 50 days, the investigation in the case is complete and recovery has been effected, and furthermore, the petitioner does not have any criminal antecedents, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. 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 Officer on Investigating every Saturday _B.A.No.5692/2024_ _-:7:-_ between 9 a.m. and 11 a.m till the final report is laid. He shall appear before the Investigating Officer on third till the every Saturday conclusion of the trial in Crime No.324/2024, and as and when required before the Investigating Officer; - (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; - (iii) The petitioner shall not commit any offence while he is on bail; - (iv) The petitioner shall furnish his present and permanent address, and his mobile phone number to the Investigating Officer and file a memo to the effect before the jurisdictional court. - (v) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Ernakulam, _B.A.No.5692/2024_ ## _-:8:-_ without the previous permission of the jurisdictional court; - (vi) 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; - (vii) 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. - (viii)Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. - (ix)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 _B.A.No.5692/2024_ _-:9:-_ 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** DST/22.07.24 //True copy// P.A. To Judge