Nipin v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 BAIL APPL. NO. 2725 OF 2024 ``` ``` CRIME NO.1893/2023 OF ATTINGAL POLICE STATION, THIRUVANANTHAPURAM ``` ## `PETITIONER:` ``` NIPIN, AGED 30 YEARS S/O PRAKASHAN, ROSHNI HOUSE, MANJAMALA, THACHAPPALLY, KEEZHTHONNAKKAL, TRIVANDRUM., PIN – 695003 ``` ``` BY ADVS.C.S.MANILAL S.NIDHEESH ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` ADGP SRI GRASHIOUS KURIAKOSE , SR PP SRI C K SURESH ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.2725/2024_ _-:2:-_ _Dated this the 18[th] day of July, 2024_ ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the fifth accused in Crime No.1893/2023 of the Attingal Police Station, Thiruvananthapuram, which is registered against the accused (16 in number) for allegedly committing the offences punishable under Sections 120B, 341, 323, 324, 302, 212 & 201 read with Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’). The petitioner was arrested and remanded to judicial custody on 12.09.2023. 2. The essence of the prosecution case is that: on 16.08.2023, at around 14.30 hours, the accused had hatched a conspiracy, and in furtherance of their common intention, they formed themselves into an unlawful assembly with dangerous weapons, and they kidnapped a person named ‘Sreejith(deceased) and _B.A.No.2725/2024_ _-:3:-_ took him to the scene of occurrence, and the first accused hit him with a cane and pushed him to the floor. Then, the fifth accused took a chopper from the hands of the first accused and hit the deceased on several parts of his body, the accused Nos.6 & 7 beat the deceased with country sticks, the second accused took the chopper from the first accused and stabbed the deceased on his body, the 8th accused took the country stick from the sixth accused and hit the deceased on several parts of his body, the fourth accused took a coconut husk and hit on the body of the deceased, the third accused hit the deceased on his body several times and the fifth accused took the chopper from the first accused and inflicted an injury on the back of the deceased, the accused Nos.1 to 8 kicked the deceased several times and caused his death. Subsequently, the accused Nos.9 to 16 harboured the accused Nos.1 to 8. Thus, the _B.A.No.2725/2024_ _-:4:-_ accused have committed the above offences. 3. Heard; Sri.C.S.Manilal, the learned counsel appearing for the petitioner and Sri. C.K. Suresh, the learned Special Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. A reading of Annexure-1 remand report would show that the offence under Section 302 of the IPC cannot be attributed against the petitioner. The specific overt acts are levelled against the accused Nos.1 & 2, which led to the deceased losing his life. The allegation against the petitioner is that, he first attacked the deceased with the blunt side of the knife on his right hand and, thereafter, inflicted a lacerated wound on the back of the deceased. Moreover, the accused Nos.3, 4, 7 & 8 have been enlarged on bail by the Court of Session as per Annexures-4 & 5 orders. By Annexure-2 order, the _B.A.No.2725/2024_ _-:5:-_ petitioner’s application was dismissed on the sole reason that he is involved in three other crimes. A reading of Annexure-4 order would show that the accused Nos.3 & 4 have similar antecedents. The learned Sessions Judge ought to have granted parity to the petitioner as laid down by the Hon'ble Supreme Court in **Satender Kumar Antil v. CBI** [(2022) 10 SCC 51]. The petitioner has been in judicial custody for the last 10 months and six days, the investigation in the case is complete, and the final report has been laid. The alleged antecedents of the petitioner are irrelevant because one crime is of the year 2016 and the other two crimes are of the year 2017. The said crimes are not registered as serious offences as found by the learned Sessions Judge. The learned counsel also relied on the decision of the Hon'ble Supreme Court in **Javed Gulam Nabi Shaikh v. State of Maharashtra & Anr.** [(2024) SCC Online SC 1693] to fortify his _B.A.No.2725/2024_ _-:6:-_ contention that prolonged incarceration of an accused is in violation of Article 21 of the Constitution of India. Therefore, he prayed that the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that there is a specific overt act alleged against the petitioner, who has inflicted a grievous injury on the deceased. He submitted that the petitioner is a person with criminal antecedents because he is involved in three crimes. The Investigating Officer proposes to initiate proceedings under the Kerala Anti-Social Activities (Prevention) Act, since the petitioner is a habitual offender. If the petitioner is enlarged on bail, there is every likelihood of him intimidating the witnesses and tampering with evidence. Therefore, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, he had hatched a conspiracy along _B.A.No.2725/2024_ _-:7:-_ with the other accused, and in furtherance of their common intention, the petitioner assaulted the deceased with a knife that was taken from the first accused and inflicted an injury on the right hand of the deceased, and also a lacerated wound on the back of the deceased. A reading of Annexure-1 remand report as well as the allegations in the bail objection report filed by the Investigating Officer prima facie shows that the specific overt act of allegedly committing the murder of the deceased is attributed against the accused Nos.1 & 2. Prima facie the allegation under Section 302 of the IPC may not be attributed against the petitioner, though that is a matter to be investigated and ultimately decided at the time of trial. The fact remains that the petitioner's application for bail was dismissed by the learned Sessions Judge as per Annexure-2 order for the sole reason that the petitioner has been involved in three other crimes. _B.A.No.2725/2024_ _-:8:-_ 7. On a perusal of the bail objection report, it is seen that one crime is of the year 2016 and the other two crimes of the year 2017 for allegedly committing the predicate offences under Sections 308, 326 & 307 of the IPC, respectively. The fact remains that the petitioner has been in judicial custody for the last 10 months and six days, the investigation in the case is complete, the recovery has been effected, and the final report has been laid. Moreover, the learned Sessions Judge has enlarged the accused Nos.3, 4, 7 & 8 as per Annexures-4 & 5 orders. I find that the petitioner is similarly placed with the accused Nos.3, 4, 7 & 8, and that he is also entitled to the benefit of parity. 8. It is well settled in **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], that merely because a person has an antecedent, the same shall not be treated as a ground to deny bail to that person. _B.A.No.2725/2024_ _-:9:-_ 9. 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. 10. In **Dataram Singh v. State of U.P.** [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is the 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. 11. In **Hussainara Khatoon (I) v. Home Secy.,** **State of Bihar** [(1980) 1 SCC 81], the Honourable _B.A.No.2725/2024_ _-:10:-_ 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 and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 12. 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. The right to bail cannot be denied merely due to the sentiments of the society. 13. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially considering the fact that the petitioner has been in judicial custody for the last 10 months and six days, the investigation in the case is complete, recovery has been effected, and the final report has been laid, and, further, the accused Nos.3, 4, 7 & 8 have already been enlarged on bail, I _B.A.No.2725/2024_ _-:11:-_ am of the firm view that the petitioner is also entitled to be released on bail. 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 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 third Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No.1893/2023. He shall also appear before the Investigating Officer as and when required; - (ii)The petitioner shall not directly or indirectly make any inducement or threat to the victim or her witnesses or to any person acquainted with the facts of the case, so as to dissuade them from disclosing such facts to the court or to any Police Officer, or tamper with the evidence in any _B.A.No.2725/2024_ _-:12:-_ 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) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Thiruvananthapuram, without the previous permission of the jurisdictional court; - (vi) The petitioner shall furnish his present address and permanent address, and his mobile phone number to the court below and the Investigating Officer and file a memo to the effect before the jurisdictional court. - (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 _B.A.No.2725/2024_ _-:13:-_ on the same, in accordance with law. - (viii) Applications for deletion/modification of the bail conditions shall be filed and entertained before 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]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- ## **C.S.DIAS,JUDGE** DST/18.07.24 //True copy// P.A. To Judge