Kishore M S v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 1539 OF 2024`** ``` CRIME NO.34/2024 OF MANNANTHALA POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER/JUDGMENT DATED IN BAIL APPL. NO.1044 OF 2024 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/3RD ACCUSED:`** ``` KISHORE M S AGED 42 YEARS S/O. MOHANAKUMAR CHANDRODAYAM HOUSE, NEAR VENGAVILA BLOCK OFFICE POOVATHOOR P O NEDUMANGAD,, PIN - 69556 ``` ``` BY ADV L.RAJESH NARAYAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV SRI C S HRITHWIK – SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` ``` BAIL APPL. NO.1539 OF 2024 ``` **C.S.DIAS, J.** **-------------------------------------------------------B.A. No. 1539 OF 2024 ------------------------------------------------------Dated this the 1[st] day of March, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the 3[rd] accused in Crime No.34/2024 of the Mannanthala Police Station, Thiruvananthapuram registered against the accused (four in number) for allegedly committing the offences punishable under Sections 409, 420, 120(b) and 34 of the Indian Penal Code. The petitioner was arrested on 15.01.2024. 2. The essence of the prosecution case is that: on 04.11.2023 at 12 p.m. the first accused, who was the former Branch Manager of the Catholic Syrian Bank, Nalanchira branch took 1727.77 of grams gold ``` 3 ``` ## **`BAIL APPL. NO.1539 OF 2024`** ornaments having a value of Rs.96,23,678/- from the strong room of the bank and handed over the same to the second accused, who in turn gave it to the third accused. Thereafter, the fourth accused replaced the stones and pearls of the said ornaments and melted the gold ornaments in his house. Subsequently, the gold was taken for testing its purity. Thereafter, the gold was sold to the Kerala Jewellery, East Fort and the accused shared the profit between them. Thus, the accused have committed the above offences. 3. Heard; Sri. Rajesh Narayan the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that, petitioner is totally innocent of the accusations levelled against him. This is the second application filed by the petitioner. Petitioner’s earlier ``` 4 ``` ``` BAIL APPL. NO.1539 OF 2024 ``` application of similar relief was dismissed by this Court by Annexure A3 order. The petitioner has been in judicial custody since 15.01.204, which is 46 days. The investigation in the case is practically complete and recovery has been effected. Moreover, the petitioner’s complicity in the crime is quite minimal because he allegedly only introduced the second accused to the fourth accused. Therefore, the petitioner’s further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. He contended that the petitioner had aided the other accused in the crime, and that’s why Sections 120(b) and 34 IPC have been incorporated. Nonetheless, he conceded to the fact that the investigation of the case is practically complete and recovery has been effected. ``` 5 ``` ## **`BAIL APPL. NO.1539 OF 2024`** 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 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. ``` 6 ``` ## **`BAIL APPL. NO.1539 OF 2024`** 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. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, particularly taking note of the fact that the petitioner has been in judicial custody since 15.01.2024, that the investigation in the case, so far as the petitioner is concerned, is practically complete and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing ``` 7 ``` ## **`BAIL APPL. NO.1539 OF 2024`** 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 Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of one month 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 him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; ``` 8 ``` ## **`BAIL APPL. NO.1539 OF 2024`** 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 of the conditions any - 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 ``` 9 ``` ## **`BAIL APPL. NO.1539 OF 2024`** 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** BR ``` 10 ``` ## **`BAIL APPL. NO.1539 OF 2024`** ## **`APPENDIX OF BAIL APPL. 1539/2024`** |**`PETITIONER’S`**|**`ANNEXURES`**| |---|---| |**`Annexure A1`**|**`TRUE COPY OF THE FIR NO.34/2024 DATED`**| ||**`13.1.2024 OF THE MANNANTHALA POLICE`**| ||**`STATION`**| |**`Annexure A2`**|**`TRUE COPY OF THE ORDER DATED 2.2.2024 IN`**| ||**`CMP 95/2024 OF THE HON'BLE JUDICIAL FIRST`**| ||**`CLASS MAGISTRATE COURT-V, (SPECIAL COURT`**| ||**`FOR THE MARKLIST CASES),`**| ||**`THIRUVANANTHAPURAM`**| |**`Annexure A3`**|**`TRUE COPY OF THE ORDER DATED 14.2.2024 IN`**| ||**`B.A NO.1044/2024`**| ``` RESPONDENT’S ANNEXURS: NIL ```