Lijo Joseph v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 19[TH] DAY OF APRIL 2024 / 30TH CHAITHRA, 1946 BAIL APPL. NO. 2270 OF 2024 ``` ``` CRIME NO.108/2024 OF THIRUVAMBADY POLICE STATION, KOZHIKODE PETITIONER/ACCUSED : ``` ``` LIJO JOSEPH,AGED 31 YEARS S/O JOSEPH, RESIDING AT VELIKKAKATH HOUSE, ATHIPPARA, THAMBALANNA POST, KOZHIKODE DISTRICT, PIN – 673 603. BY ADVS. J.R.PREM NAVAZ PREETHA RANI M.S. SUMEEN S. MUHAMMED SWADIQ ``` ## **`RESPONDENT/STATE :`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. ``` ``` PP PRASANTH M P ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. 2270/2024 ``` ``` 2 ``` ## P.V.KUNHIKRISHNAN, J .......................................... ## B.A.No.2270 of 2024 ............................................. Dated this the 19th day of April, 2024 ## ORDER This Bail Application is filed under Section 439 of Criminal Procedure Code, 1973. 2. The petitioner is the sole accused in Crime No.108/2024 of Thiruvambady Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 341, 325 and 304 of the Indian Penal Code, 1860. 3. The prosecution case is that, due to the animosity - towards the brother of the informant, who had questioned the accused when he had cut the branches of a tree in boundary of the property of the brother of the informant, on 03.03.2024 at 5.30 p.m., the accused had wrongfully ``` BAIL APPL. 2270/2024 ``` ``` 3 ``` restrained the brother of the informant in front of Thuruthiparambil Flour Mill at Athippara, and had beaten the brother of the informant and pushed him towards the gate of the flour mill as a result of which the brother of the informant sustained grievous injury on his forehead and succumbed to his injuries. Hence, it is alleged that the accused committed the offences. The petitioner was arrested on 08.03.2024. 4. Heard the counsel for the petitioner and the Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is in custody from 08.03.2024 onwards. It is also submitted that even if the entire allegations are accepted, the offence under Section 304 of IPC is not made out. The learned counsel for the petitioner further submitted that the petitioner is ready to abide by any conditions, if ``` BAIL APPL. 2270/2024 ``` ``` 4 ``` this Court release him on bail. 6. The learned Public Prosecutor opposed the bail application and submitted that because of the intentional act of the petitioner, the injured succumbed to the injury and hence the offence under Section 304 of IPC is made out. Therefore, this Court may not release the petitioner at this stage. 7. This Court considered the contentions of the learned counsel for the petitioner and the learned Public Prosecutor. It is admitted fact that the petitioner is in custody from 08.03.2024. Admitted prosecution case is that, the petitioner assaulted the deceased using hands and pushed towards gate and he sustained injury. In such circumstances, the offence under Section 304 of IPC is made out or not is a matter to be investigated and to be decided in the trial, if any. ``` BAIL APPL. 2270/2024 ``` ``` 5 ``` 8. Considering the facts and circumstances of the case and also considering the period of detention, I think the petitioner can be released on bail after imposing stringent conditions. 9. Since a person died in the incident, it will be better to restrain the petitioner from entering the jurisdictional police station for a period of 30 days, so that the investigation can be completed. 10. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the ``` BAIL APPL. 2270/2024 ``` ``` 6 ``` opportunity of securing fair trial. 11. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: i. Petitioner shall be released on bail on 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 jurisdictional Court. ii.The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise 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. Iii.Petitioner shall not leave India without permission of the jurisdictional Court. iv.Petitioner shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which he is ``` BAIL APPL. 2270/2024 ``` ``` 7 ``` ## suspected. v.The petitioner shall appear before the investigating officer on all Mondays till final report is filed. vi.Petitioner shall not enter into the jurisdictional limits of Thiruvambady Police Station, for a period of 30 days. Petitioner shall furnish his residential address and mobile phone number to the Investigating Officer, immediately after his release. I make it clear that, for the purpose of appearance on Mondays before the Investigating Officer, the petitioner can enter the jurisdiction limit of the police station. 12. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. sd/- P.V.KUNHIKRISHNAN JUDGE AMV/19/04/2024 ``` BAIL APPL. 2270/2024 ``` ``` 8 ``` ## **`APPENDIX OF BAIL APPL. 2270/2024`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE A1THE TRUE COPY OF THE FIR IN CRIME NO: 108/2024 OF THIRUVAMBADY POLICE STATION, KOZHIKODE DISTRICT. ANNEXURE A2THE TRUE COPY OF THE REMAND REPORT OF THE PETITIONER IN CRIME NO: 108/2024 OF THIRUVAMBADY POLICE STATION, KOZHIKODE DISTRICT. ``` ``` ANNEXURE A3THE TRUE COPY OF THE ORDER DATED 12.03.2024 IN CMP NO: 749 OF 2024 PASSED BY THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS THAMARASSERY. ``` TRUE COPY