Rojimon M.V. @ Roji Mathew v. State of Kerala and Station House Officer, Kalamassery Police Station, Ernakulam

## `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. 5330 OF 2024` ``` CRIME NO.317/2024 OF KALAMASSERY POLICE STATION, ERNAKULAM ``` ## `PETITIONER:` ``` ROJIMON.M.V @ ROJI MATHEW , AGED 43 YEARS, S/O VARGHESE, MURINGAKATTU CHIRAYIL HOUSE, VEZHPRA.P.O, KUTTANAD, ALAPPUZHA DISTRICT, PIN – 689595 ``` ## `BY ADV R.KISHORE (KALLUMTHAZHAM)` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, PIN – 682031 ``` ``` 2STATION HOUSE OFFICER, KALAMASSERRY POLICE STATION, ERANAKULAM, PIN – 682035 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.5330/2024_ _-: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 second accused in crime No.317/2024 of the Kalamassery Police station Ernakulam, which is registered against the accused for allegedly committing the offences punishable under Sections 143, 147, 341, 328, 365 & 419 read with Section 149 of the Indian Penal Code, 1860. The petitioner was arrested and remanded to judicial custody on 14.06.2024. 2. The crux of the prosecution case is that, on 10.02.2024, at around 12.30 hours, the accused, in prosecution of their common intention, formed an unlawful assembly, and due to their previous animosity towards the informant, disguised themselves as _B.A.No.5330/2024_ _-:3:-_ officers of the Narcotic Cell, and, then, administered an injection on the wrist of the informant and made him unconscious. Thereafter, they took him to Nair’s Psychiatric Hospital, Ernakulam, and admitted the informant as an inpatient after branding him as a mental patient. Thus, the accused have committed the above offences. 3. Heard; Sri. R.Kishore, the learned counsel appearing for the petitioner and Sri. C.S Hrithwik, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner is only an employee of Sacred Heart Hospital, Thodupuzha. It is on the instructions of the hospital authorities, that the petitioner with all bona fides administered the injection on the informant. The petitioner is unaware of the intention of the other accused in getting the _B.A.No.5330/2024_ _-:4:-_ informant admitted in the hospital. In any given case, the petitioner has been in judicial custody for the last 33 days, the investigation in the case, so far as the petitioner is concerned, is practically complete, and the recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the bail application. He submitted that investigation in the case is in progress. He also stated that it was the petitioner who administered an injection on the informant and made him unconscious. There was a deliberate attempt on the part of the accused to brand the informant as a mental patient. If the petitioner is enlarged on bail, there is every likelihood of him intimidating the witnesses and tampering with evidence. Hence, the application may be dismissed. 6. The prosecution allegation against the _B.A.No.5330/2024_ _-:5:-_ petitioner is that, he administered an injection on the first informant, who turned unconscious, and he was taken to a hospital to undergo psychiatric treatment. Indisputably, the petitioner was only an employee of the hospital and was allegedly acting on the advice of the superiors. The fact remains that the petitioner has been in judicial custody for the last 33 days, the recovery has been effected, and the accused Nos.1, 3 to 5 have been enlarged on bail by the Court of Session. 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. _B.A.No.5330/2024_ _-:6:-_ 8. 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. 9. 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. 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the accused Nos.1, 3 to 5 have been enlarged on bail, the petitioner has been in judicial custody for the last 33 days, the investigation in the _B.A.No.5330/2024_ _-:7:-_ case is complete, and recovery has been effected, I am of the firm view that the petitioner’s further detention is unnecessary. 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 till the final report is laid. 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 _B.A.No.5330/2024_ _-:8:-_ 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. - (vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before 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 _B.A.No.5330/2024_ _-:9:-_ 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** DST/18.07.24 //True copy// P.A. To Judge