Rahul @ KITTU v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1301 OF 2024 ``` ``` CRIME NO.2296/2023 OF PARASSALA POLICE STATION, ``` ``` THIRUVANANTHAPURAM ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN BAIL APPL. NO.664 OF 2024 OF HIGH COURT OF KERALA PETITIONER/6TH ACCUSED: ``` ``` RAHUL @KITTU, AGED 30 YEARS S/O BHASKARAN, VATTOMTHALAKKAL VEEDU, KUZHAKOTTUKONAM, PARASUVAIKKAL, PARASSALA, THIRUVANANTHAPURAM, PIN - 695508 ``` ``` BY ADVS. VISHNU BHUVANENDRAN B.ANUSREE MIRAL K.JOY ABHILASH C.V. VARUN JACOB ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`PUBLIC PROSECUTOR SMT SHYNIMOLE V O`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.1301 of 2024** ``` 2 ``` ## **Dated this the 7[th] day of March, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 6[th ] accused in Crime No.2296/2023 of the Parassala Police Station, Thiruvananthapuram registered against the accused (eight in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 149, 341, 294(b), 323, 324 and 307 of the Indian Penal Code. 2. The gist of the prosecution case is that: on 25.12.2023, at about 11.30 p.m., the accused in prosecution of their common intention had formed an unlawful assembly near Parasuvaikkal Church, and, **B.A. No.1301 of 2024** ``` 3 ``` thereafter, they verbally abused and physically assaulted the de facto complainant and his friends and caused grievous injuries to them. The first accused stabbed the de facto complainant with a knife. Thus, the accused have committed the above offences. 3. Heard; Sri. Vishnu Bhuvanendran, the learned counsel appearing for the petitioner and Smt.Shynimol V.O, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of Annexure 1 FIR would substantiate that there is no specific overt act alleged against the petitioner. In any given case, Section 307 of IPC cannot be attributed against the petitioner, since he has not inflicted any injury on the de facto complainant. Pursuant to Annexure II order, the ## **B.A. No.1301 of 2024** ## **`4`** petitioner had surrendered before the Investigating Officer on 13.2.2024. Even he filed an though application for bail before the jurisdictional Magistrate, the same was dismissed by Annexure III order. The investigation in the case, so far as the petitioner is concerned, is practically complete and recovery has been effected. Hence, the petitioner’s further detention is not necessary. Moreover, accused 1,2 and 4 have already been released on bail. Therefore, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She contended that the investigation in the case is still in progress. She submitted that it was the petitioner who caught hold of the friend of the de facto complainant and facilitated the other accused to assault the friends of the de facto complainant. Nonetheless, she conceded to the fact that the petitioner has been in ``` 5 ``` ## **B.A. No.1301 of 2024** judicial custody since 13.2.2024, investigation in the case, so far as the petitioner is concerned, is practically complete, recovery has been effected and the accused 1, 2 and 4 have been released on bail. 6. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the2024:KER:11608 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. 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 ## **B.A. No.1301 of 2024** ## **`6`** 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 rival submissions made across the Bar, and the materials placed on record, particularly taking note of the fact that there is no specific overt act alleged against the petitioner with regard to commission of the offence under Section 307 of IPC, investigation in the case is practically complete and recovery has been effected ``` 7 ``` ## **B.A. No.1301 of 2024** and accused 1, 2 and 4 have already been enlarged on bail, I am of the definite view that the petitioner’s further detention is not necessary. 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 Saturday between 9 a.m. and 11 a.m for a period of one month or till the final report is laid, whichever is earlier. He shall also appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly ``` 8 ``` ## **B.A. No.1301 of 2024** 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 ``` 9 ``` ## **B.A. No.1301 of 2024** 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 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** rmm/7/3/2024