Narayana v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 ``` ## **`BAIL APPL. NO. 5121 OF 2024`** ## **`CRIME NO.4/2022 OF ERNAKULAM SOUTH POLICE STATION, ERNAKULAM`** ``` PETITIONER: ``` ``` NARAYANA, AGED 42 YEARS ``` ``` S/O MUNIYAPPA, BESANAPILLY P.O, DENGINIKKOTTA, HOZUR, TAMIL NADU, NOW RESIDING AT RENTAL HOUSE OF SATHEESH KUMAR, NO. CC/55/2328, NEAR MATTAMMEL BHAGAVATHY TEMPLE, K.P VALLON ROAD, ELAMKULAM VILLAGE, KANAYANNUR TALUK., PIN - 682017 ``` ``` BY ADVS. SRI.DENIZEN KOMATH SRI.DEAN DENIZEN KOMATH SMT.MEGHA MADHAVAN ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031`** - **`2 STATION HOUSE OFFICER, ERNAKULAM SOUTH POLICE STATION, THEVARA, PERUMANOOR PO, KOCHI., PIN - 682015`** ## **`BY SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.5121 of 2024 ``` ``` 2 ``` ## **ORDER** ## **Dated this the 24[th] day of July, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.4/22 of the Ernakulam South Police Station, Ernakulam, which is registered against him for allegedly committing the offences punishable under Sections 302 and 309 of the Indian Penal Code, 1860 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act. The petitioner was arrested and remanded to on judicial custody 06.01.2022. 2. The crux of the prosecution cases is that: in the intervening night of 31.12.2021 and 01.01.2022, the accused committed murder of his wife and two children by administering them with excess quantity of sleeping tablets mixed in the Ice cream and then ``` 3 ``` ``` B.A.No.5121 of 2024 ``` strangulating them. After confirming their death, the accused attempted to commit suicide by consuming sleeping tablets and pesticides and also cutting his arteries. The cause is alleged due to huge financial liabilities. Thus, the accused has committed the above offences. 3. Heard Sri. Denizen Komath, the learned counsel for the petitioner, Smt.Seetha.S. learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the above offences. The petitioner does not have any criminal antecedents. In any given case, the petitioner has been in judicial custody for the last two and a half years, the trial of the cases has not yet ``` B.A.No.5121 of 2024 ``` ``` 4 ``` commenced and the petitioner is not certain of the time period that would be taken to dispose of the case. Therefore, the petitioner’s fundamental right guaranteed under Article 21 of the Constitution of India stands infringed. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner has committed a heinous crime by murdering his wife and two children. The petitioner also attempted to commit suicide. If the petitioner is enlarged on bail, there is every likelihood of him attempting to commit suicide again. Moreover, the petitioner does not have roots in the State of Kerala. Hence, the petitioner may flee from justice. Therefore, the application may be dismissed. 6. The prosecution case is that, the petitioner murdered his wife and two children by administering ``` B.A.No.5121 of 2024 ``` ``` 5 ``` them with huge quantity of sleeping tablets and then, strangulated them to death. It is also alleged that, he attempted to commit suicide. The petitioner had showed the symptoms of mental abnormality and was treated at the Mental Health Centre, Thrissur. 7. Indisputably, the petitioner was arrested and remanded to judicial custody on 06.01.2022, that is more than two and a half years. The trial in the case has not commenced as yet. 8. When the application came up for consideration on 01.07.2024, this Court had called for a report from the Trial Court to ascertain the status of S.C No.658/2022 and reasonable time period that would be required to dispose of the case. 9. Pursuant to the above order, the learned Trial Judge, by communication dated 05.07.2024, has informed this Court that the Forensic Science Laboratory Report has not been received. Even ``` B.A.No.5121 of 2024 ``` ``` 6 ``` though, repeated reminders have been sent to the Forensic Science Laboratory, the same has not been submitted till date. The Trial Court would require atleast three months’ time to dispose of the case, after the receipt of the Forensic Science Laboratory Report. 10. In the light of the above report and taking into consideration the submission made by the learned Public Prosecutor, that the petitioner is a native of Tamil Nadu and he has no permanent abode in Ernakulam, this Court directed the learned counsel appearing for the petitioner to file a memo stating the place where the petitioner proposes to live in Ernakulam and who would take up the responsibility to look after him and also stand as his surety. 11. Today when the application was taken up for consideration, the learned counsel appearing for the petitioner has produced Annexure-A3 affidavit filed by ``` B.A.No.5121 of 2024 ``` ``` 7 ``` a person who is said to be closely acquainted and maintaining a cordial relationship with the petitioner. The deponent has stated that he would permit the petitioner to live with him in Vazhakkulam, Ernakulam, that he would ensure that the petitioner appears before the Investigating Officer till the conclusion of the trial and that he would ensure that the petitioner does not commit suicide as alleged by the prosecution. He also stated that he is ready to stand as a surety for the petitioner and face any financial implications that may be imposed on him. 12. As already observed above, the petitioner was arrested and remanded to judicial custody as early as on 06.01.2022. Going by the report of the learned Trial Court Judge, the trial in the case has not yet commenced for the want of the Forensic Science Laboratory Report. The learned Trial Court Judge has requested for three months time, after the receipt of ``` 8 ``` ## **`B.A.No.5121 of 2024`** the Forensic Science Laboratory Report, to dispose of S.C No.658 of 2022. 13. Recently, the Hon’ble Supreme Court in **Ankur Chaudhary v. State of Madhya Pradesh** [2024 KHC 8248] has held that if the accused is in judicial custody for a period of more than two years and the trial in the case has not commenced, it would tantamount to the infringement of the fundamental right of the accused guaranteed under Article 21 of the Constitution of India. The right to life of the accused would override any statutory embargo prescribed under any provision of law. The same view has been re-iterated by the Hon'ble Supreme Court in **Shince Babu v. State of Kerala** [2024 KHC OnLine 8084]. 14. In **Sanjay Chandra v. CBI** [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal ``` B.A.No.5121 of 2024 ``` ``` 9 ``` 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. 15. 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. 16. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable ``` B.A.No.5121 of 2024 ``` ``` 10 ``` and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 17. The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 18. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioner has been in judicial custody for the last more than two and a half years, the final report has been filed, but the trial has not commenced, and the learned Trial Court Judge has reported that the Forensic Science Laboratory Report has not been submitted till date, I am satisfied that the petitioner is entitled to be released on bail, ``` B.A.No.5121 of 2024 ``` ``` 11 ``` since he has been in incarceration for a considerable period of time which overrides any other statutory embargo. 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, of whom one of the surety shall be Mr.Sidhique P.M, the deponent in Annexure A3 affidavit, 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 alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in S.C.No.658 of 2022. - (ii) The petitioner shall not commit any offence while he is on bail; ``` B.A.No.5121 of 2024 ``` ``` 12 ``` - (iii) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Ernakulam without the previous permission of the Trial Court. - (iv) The petitioner shall reside in the house of the deponent in Annexure A3 affidavit until further orders. - (v) 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; - (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; ``` B.A.No.5121 of 2024 ``` ``` 13 ``` - (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 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** NAB