Shanil v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 3451 OF 2024 ``` ``` CRIME NO.1661/2023 OF KUNNAMKULAM POLICE STATION, THRISSUR AGAINST THE ORDER/JUDGMENT DATED IN CMP NO.2019 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMKULAM PETITIONER/ACCUSED: ``` ``` SHANIL, AGED 28 YEARS S/O. SHAJAN,VADAKKAN HOSE, KURUKKANPARA, ARTHAT VILLAGE, THRISSUR DISTRICT, PIN - 680521 ``` ``` BY ADVS. P.M.RAFIQ RAHUL SUNIL ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`PP SMT SHYNIMOL V O`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.3451 of 2024** ``` 2 ``` ## **Dated this the 20[th] day of May, 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.1661/2023 of the Kunnamkulam Police Station, Thrissur, registered against the accused ( seven in number) for allegedly committing the offences punishable under Sections 143, 147, 341, 323, 324 and 308 r/w Section 149 of the Indian Penal Code. The petitioner was arrested on 21.3.2024. 2. The essence of the prosecution case is that; on 22.11.2023, at around 20 hours, the accused 1 to 7, in prosecution of their common intention, formed an ## **B.A. No.3451 of 2024** ## **`3`** unlawful and restrained one assembly wrongfully Kannan, the friend of the de facto complainant, and assaulted him. The second accused hit on the neck of the de facto complainant with a stick. It is only because the injured evaded the attack, he did not lose his life. Thus, the accused have committed the above offences. 3. Heard; Sri.Rafiq P.M., learned counsel appearing for the petitioner and Smt. Shynimol V.O., the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Section 308 of IPC, to deny bail to the petitioner. In any given case, the investigation in the case is complete and recovery has been effected. The petitioner has been in ``` 4 ``` ## **B.A. No.3451 of 2024** judicial custody for the last 61 days. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner is a person with criminal antecedents. In addition to the present crime, Crime No.1660/2023 has been registered by the very same police station against the petitioner for committing a similar offence. He is also an accused in three other crimes. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed. Nonetheless, she conceded to the fact that investigation in the case is complete and recovery has been effected. 6. The prosecution allegation against the petitioner is that, he along with the other accused, in prosecution of their common intention, formed an unlawful assembly ``` 5 ``` ## **B.A. No.3451 of 2024** and assaulted the de facto complainant. The specific overt act alleged against the petitioner is that he attempted to hit on the neck of the de facto complainant with a stick. It is only because the de facto complainant evaded the attack, he did not lose his life. 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 punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 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 ``` 6 ``` ## **B.A. No.3451 of 2024** 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.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. 10. 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. **B.A. No.3451 of 2024** ``` 7 ``` 11. After bestowing my anxious consideration to 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 61 days, the investigation in the case is complete and recovery has been effected, I am of the definite 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. ``` 8 ``` ## **B.A. No.3451 of 2024** 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 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 ``` 9 ``` ## **B.A. No.3451 of 2024** 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 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)** ``` 10 ``` **B.A. No.3451 of 2024** **and another [2020 (1) KHC 663].** rmm/20/5/2024 **C.S.DIAS, JUDGE**