Kochumon @ Kuttappayi v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1498 OF 2024 ``` ``` CRIME NO.886/2023 OF KAYAMKULAM POLICE STATION, ALAPPUZHA ``` ## **`PETITIONER/ACCUSED NO.5:`** ``` KOCHUMON @ KUTTAPPAYI AGED 39 YEARS ``` ``` S/O SHAHUL HAMEED, KAZHCHAKUNNIL HOUSE, KAYAMKULAM, ALAPPUZHA, KERALA., PIN - 690106 ``` ``` BY ADVS. M.R.SASITH NEELANJANA NAIR P.SANTHOSHKUMAR (KARUMKULAM) RIYA KOCHUMMAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.02.2024, ALONG WITH BAIL APPL..1521/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A. Nos.1498 & 1521 of 2024 2 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 BAIL APPL. NO. 1521 OF 2024 ``` ``` CRIME NO.476/2023 OF KAREELAKULANGARA POLICE STATION, ``` ## **`ALAPPUZHA`** ## **`PETITIONER/5TH ACCUSED:`** ``` KOCHUMON @ KUTTAPPAYI AGED 39 YEARS S/O SHAHUL HAMEED, KAZHCHAKUNNIL HOUSE, KAYAMKULAM, ALAPPUZHA, KERALA, PIN - 690106 ``` ``` BY ADV M.R.SASITH ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY PP SMT SHYNIMOLE V O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.02.2024, ALONG WITH BAIL APPL..1498/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A. Nos.1498 & 1521 of 2024 3 ## **Dated this the 29[th] day of February, 2024** ## **C O M M O N O R D E R** These are the second applications filed under Section 439 of the Code of Criminal Procedure, 1973 (‘Code’, for short), to release the petitioner on bail. In BA No.1498/2024, the petitioner is the fifth accused in crime No.886/2023 of the Kayamkulam Police Station, Alappuzha, and in BA No.1521/2024, the petitioner is the fifth accused in crime No.476/2023 of the Kareelakulangara Police Station, Alappuzha. As the petitioner is the same in both the bail applications, they are consolidated, jointly heard are being disposed of by this common order. 2. In BA No.1498/2024, the gist of the prosecution case is that: on 24.8.2023 at about 4.30 a.m, the accused (five in number) had with an intention to rob money from the defacto complainant, kidnapped and wrongfully B.A. Nos.1498 & 1521 of 2024 4 confined him. For the said purpose, they had gone to the defacto complainant who was sleeping in his car bearing registration No.KL 29/D 3040 and told him that they wanted to talk with him. At that time, the second accused reached there in another car and the first accused asked the defacto complainant whether he has any dispute with the second accused. The third accused also went in another car with a sword and threatened the defacto complainant. He grabbed the money which was kept at the back seat of his car. At that time, a staff of the defacto complainant went to rescue him. But the accused locked him in the back seat of the car and around 6.00 a.m, the first accused threatened the defacto complainant and asked him to drive the car. The accused 3 and 4 abused the defacto complainant in vulgar language and they went to his shop and took an amount of Rs.24,000/- . Thus, the accused have committed the offences punishable under Secs.506(ii), 323, 342, 324, B.A. Nos.1498 & 1521 of 2024 5 365, 368, 395 and 294(b) of the Indian Penal Code. 3. The gist of the prosecution case in BA No.1521/2024 is that: around 6.40 a.m on 24.8.2023, the accused (six in number) formed themselves into an unlawful assembly and in furtherance of their common intention attacked CWs1 and 2 who were on motor cycle with a sickle and caused injuries to CW1 and committed robbery and dacoity. Thereafter, they concealed and destroyed the evidence by dismantling the motor cycle. Thus, the accused have committed the offences punishable under Secs.341, 323, 324, 394, 395 and 201 read with Sec.34 of the Indian Penal Code. 4. Heard; Sri.Sasith M.R, the learned counsel appearing for the petitioner and Smt.Shynimol.V.O, and Sri.C.S Hrithwik, the learned Public Prosecutors. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely B.A. Nos.1498 & 1521 of 2024 6 implicated in the crimes by the police due to their previous animosity towards him. The petitioner has been in judicial custody since 04.09.2023, which is nearly 200 days. The investigation in these cases is complete, and final reports have been laid. The cases have been committed to the respective Courts of Session. Therefore, there is a change of circumstances from the passing of Annexure A2 common order. The petitioner's further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutors strenuously opposed the applications. They submitted that, not withstanding the fact that the petitioner has been in judicial custody since 04.09.2023, the petitioner is a person with criminal antecedents. In addition to the above crimes, he is also involved in crime No.599/2023 of the Santhanpara Police Station, which was registered against him for allegedly committing the predicate B.A. Nos.1498 & 1521 of 2024 7 offence under Section 307 of the IPC. Likewise, he was also accused in crime No.153/2006 of the Kayamkulam Police Station for allegedly committing an offence under the Arms Act. They submitted that if the petitioner is let off on bail, there is every likelihood of him committing similar offences and causing unrest in the society. Hence, these applications may be dismissed. 6. The prosecution allegations in both crimes are serious in nature. The materials on record would substantiate that the petitioner is a person involved in two other crimes of similar nature, one in the year 2006 and the other in the year 2023. However, the fact remains that the petitioner has been in judicial custody in both crimes since 04.09.2023, that the investigation in these cases is complete, the final reports have been laid, and that the cases have already been committed to the jurisdictional Court of Sessions. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], B.A. Nos.1498 & 1521 of 2024 8 the2024:KER:11608 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. 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 B.A. Nos.1498 & 1521 of 2024 9 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. 10. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, and especially taking into account the fact that the investigation in these cases is complete, that the recoveries have been effected, that the final reports have been laid, and that the cases have been committed to the respective Jurisdictional Courts, 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 bonds for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum, to the B.A. Nos.1498 & 1521 of 2024 10 satisfaction of the courts having jurisdiction, in both crimes, 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 till the conclusion of the proceedings in both the cases. 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; (iii) The petitioner shall not commit any offence while he is on bail; B.A. Nos.1498 & 1521 of 2024 11 (iv) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Alappuzha, till the conclusion of proceedings in both cases without the previous permission of the Jurisdictional Courts. (v) The petitioner shall surrender his passport, if any, before the before the first court that he executes 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; (vi) The petitioner shall furnish his present address and his mobile phone number and the place where he proposes to stay till the final report is laid; (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 B.A. Nos.1498 & 1521 of 2024 12 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 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/-** mtk/29.02.24 **C.S.DIAS, JUDGE** B.A. Nos.1498 & 1521 of 2024 13 ## **`APPENDIX OF BAIL APPL. 1521/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1TRUE COPY OF THE FIR NO 476/2023 OF KAREELAKULANGARAPOLICESTATION, ALAPPUZHA ``` ``` ANNEXURE A2TRUE COPY OF THE COMMON ORDER IN BA NO. 21/2024 BEFORE HON'BLE HIGH COURT OF KERALA, DATED 30.01.2024 ``` B.A. Nos.1498 & 1521 of 2024 14 ## **`APPENDIX OF BAIL APPL. 1498/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1TRUE COPY OF THE FIR 886/2023 OF KAYAMKULAM POLICE STATION, ALAPPUZHA ``` ``` ANNEXURE A2TRUE COPY OF THE COMMON ORDER IN BA NO. 20/2024 BEFORE HON'BLE HIGH COURT OF KERALA, DATED 30.01.2024 ```