Liju Varghese v. State of Kerala

1 BA No.1089 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1089 OF 2024 ``` ``` CRIME NO.141/2024 OF ERAVIPURAM POLICE STATION, Kollam PETITIONER/S: ``` ``` LIJU VARGHESE AGED 42 YEARS PALLIPADIKAL VEETIL, KARAMKODE, CHATHANNOOR VILLAGE, KOLLAM DISTRICT, PIN - 691579 ``` ``` BY ADV SAIJO HASSAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` SMT.NIMA JACOB, PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1089 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.1089 of 2024** **----------------------------------Dated this the 23[rd] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.141/2024 of the Eravipuram Police Station, Kollam, registered against the accused (five in number), for allegedly committing the offences punishable under Secs. 308, 326, 323, 294(b), 506 and 427 read with Section 34 of the Indian Penal Code. The petitioner was arrested on 22.1.2024. 2. The gist of the prosecution case is that: on 21.1.2024 at around 10.45 p.m, while the defacto complainant was standing near the entrance of a shop that was run by his brother at Mayyanadu, the accused in furtherance of their 3 BA No.1089 of 2024 common intention attacked the defacto complainant and his brother with wooden log and sword and caused grievous injuries to them. The accused also committed mischief in the shop and caused a loss of Rs.2/- Lakh. Thus, the accused has committed the above offences. 3. Heard; Sri.Saijo Hassan, the learned counsel appearing for the petitioner and Smt.Nima Jacob, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure-1 FIR would substantiate that the offences alleged against the petitioner will not be attracted. The injured have not sustained grievous injuries as alleged by the prosecution. At any rate, the petitioner has been in judicial custody since 22.1.2024, which is one month. The investigation in the case is practically complete and recovery has been effected. Therefore the petitioner’s further 4 BA No.1089 of 2024 detention is not necessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She made available the accident register cum wound certificates of the three injured and submitted that the investigation in the case is in progress. Nonetheless, she conceded to the fact that the recovery has been effected and the petitioner has been in judicial custody since 22.1.2024. She also submitted that the petitioner has no criminal antecedents. 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. 5 BA No.1089 of 2024 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. 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. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, particularly after going through the accident register cum wound certificate of the three injured 6 BA No.1089 of 2024 and finding that the injured have no grievous injuries as alleged by the prosecution, that the petitioner has been in judicial custody since 22.1.2024, that the investigation in the case 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 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 7 BA No.1089 of 2024 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; (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 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. 8 BA No.1089 of 2024 (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 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/- sks/23.2.2024 **C.S.DIAS, JUDGE**