NITHIN RAJ @ KICHAN and SHANOOP v. STATE OF KERALA

## **`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. 1363 OF 2024 ``` ``` CRIME NO.661/2023 OF CHERUTHURUTHY POLICE STATION, THRISSUR AGAINST THE ORDER IN CRMC 183/2024 OF DISTRICT COURT & SESSIONS COURT,THRISSUR ``` ## **`PETITIONERS/ACCUSED 1 AND 3:`** ``` 1 NITHIN RAJ @ KICHAN AGED 35 YEARS S/O JAYARAJ, KALLEKUNDI HOUSE, KALLEKUND COLONY, CHERUTHURUTHY, PIN - 679531 2 SHANOOP AGED 28 YEARS S/O YUSAF, BANGLAVU PARAMBIL HOUSE, CHERUTHURUTHY, THRISSUR DISTRICT, PIN - 679531 ``` ``` BY ADV SAIJO HASSAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. NO.1363 OF 2024 ``` ``` 2 ``` ## **Dated this the 23[rd] day of February, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 3 in Crime No.661/2023 of the Cheruthuruthy Police Station, Thrissur, registered against the accused (four in number), for allegedly committing the offences punishable under Sections 506, 452, 323, 341, 324 and 308 r/w Section 34 of the Indian Penal Code. The petitioners were arrested on 19.01.2024. 2. The prosecution case is that: on 16.11.2023, at about 15.30 hours, the accused criminally trespassed into the showroom of the uncle of the defacto complaint, and out their previous animosity and in furtherance of their common intention, they brutally assaulted the defacto complainant and his friend. The first accused hit the friend of the defacto complainant. When the defacto ``` B.A. NO.1363 OF 2024 ``` ``` 3 ``` complainant attempted to rescue him, the second accused hit him with a leaf on his head. Similarly, the 3[rd] accused caught hold of the arms of the defacto complainant towards his back and the second accused hit him with the same leaf. If the defacto complainant had not warded off the attack, he would have lost his life. Thus, the accused have committed the above offences. 3. Heard; Sri. Saijo Hassan, the learned counsel appearing for the petitioners and Smt. Seetha. S, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusation levelled against them. The Investigating Officer has deliberately incorporated Section 308 of the IPC only to deny bail to the petitioners. Even going by the prosecution allegation the specific overt act is alleged only against the second accused, who caused alleged ``` 4 ``` ## **`B.A. NO.1363 OF 2024`** injuries to the defacto complainant. The petitioners have been in judicial custody since 19.01.2024, which is more than a month. The investigation in the case is practically complete, and recovery has been effected. The petitioners’ further detention is unnecessary. Therefore, the petitioners may be released on bail. 5. The learned Public Prosecutor opposed the application. She contended that the investigation in the case is in progress. There are specific overt acts alleged against the petitioners. She made available the Accident Register-Cum-Wound certificate of two injured dated 16.11.2023 issued by the Assistant Surgeon of the District Hospital, Vadakanchery to substantiate the injuries suffered by the injured. She submitted that if the petitioners are let off on bail, it would hamper with the investigation. Hence, the application may be dismissed. 6. On an analysis of the materials placed on record, ``` B.A. NO.1363 OF 2024 ``` ``` 5 ``` it is evident that the specific overt act is alleged against the second accused, who had allegedly hit the defacto complainant and his friend on their heads and caused the injuries. On appreciating of the Accident Register-CumWound Certificate, I prima facie find that the injured have only suffered lacerated wounds. Indisputably, the petitioners have been in judicial custody since 19.01.2024, the investigation in the case is practically complete, and recovery has been effected. 7. 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. ``` 6 ``` ## **`B.A. NO.1363 OF 2024`** 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 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. On an anxious consideration of the facts, the rival submissions made across the Bar, the materials ``` B.A. NO.1363 OF 2024 ``` ``` 7 ``` placed on record, especially taking note of the fact that there are no grievous injuries caused to the injured, that the petitioners have been in judicial custody for more than a month, that the investigation in the case is complete, and the recovery has been effected, and that the petitioners are persons without criminal antecedents, I am of the definite view that the petitioners’ continued detention is unnecessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) each 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 petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. ``` B.A. NO.1363 OF 2024 ``` ``` 8 ``` and 11 a.m for a period of one month or till the final report is laid, whichever is earlier. They shall also appear before the Investigating Officer as and when required; (ii) The petitioners 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 petitioners shall not commit any offence while they are on bail; (iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passporst, they shall file affidavits 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 ``` 9 ``` ## **`B.A. NO.1363 OF 2024`** 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; (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 petitioners even while the petitioners are 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].** ## **C.S.DIAS, JUDGE** mtk/23.02.241 ## **`B.A. NO.1363 OF 2024`** ``` 10 ``` ``` 11 ``` ## **`B.A. NO.1363 OF 2024`** ## **`APPENDIX OF BAIL APPL. 1363/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure 1 ``` ``` CERTIFIED COPY OF THE ORDER DATED 13.02.2024 IN CRL.M.C. NO. 183/2024 PASSED BY THE COURT OF THE SESSIONS JUDGE, THRISSUR IN CRIME NO. 661/2023 OF CHERUTHURUTHY POLICE STATION ``` ``` 12 ``` ## **`B.A. NO.1363 OF 2024`** ## **`APPENDIX OF BAIL APPL. 1363/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE 1 ``` ``` CERTIFIED COPY OF THE ORDER DATED 13.02.2024 IN CRL.M.C. NO. 183/2024 PASSED BY THE COURT OF THE SESSIONS JUDGE, THRISSUR IN CRIME NO. 661/2023 OF CHERUTHURUTHY POLICE STATION ```