Sharath N., Jeevan Jyothi V. & Vipil A v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946 BAIL APPL. NO. 5242 OF 2024 ``` ``` CRIME NO.272/2024 OF Kannavam Police Station, Kannur ``` ``` --------------- ``` ## **`- PETITIONERS/ACCUSED No.1, 2 & 4 :`** ``` 1SHARATH N, AGED 33 YEARS S/O. HAREENDRAN, SHARATH NIVAS, MANIYATTA.CHERUVANCHERY, PIN - 670 650 ``` - **`2 JEEVAN JYOTHI V, AGED 42 YEARS S/O. KUMARAN, PUTHANPARAMBATH HOUSE, MANIYATTA. CHERUVANCHERI, PIN - 670 650`** - **`3 VIPIL A, AGED 33 YEARS S/O. BALAN, THIRUVOTH HOUSE, MANIYATTA,CHERUVANCHERY, PIN - 670 650`** ``` BY ADVS. M.P.PRIYESHKUMAR SHANAVAS NALAKATH RANDUPURAYIL ``` ## **`RESPONDENT/STATE :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SMT.SEETHA S., SR.PP ``` ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ``` 25.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 5242 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 25th day of July, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1, 2 and 4 in Crime No.272/2024 of the Kannavam Police Station, Kannur, which is registered against the accused, for allegedly committing the offences punishable under Sections 341, 324 and 308 r/w Section 34 of the Indian Penal Code. The petitioners 1 and 2 were arrested and remanded to judicial custody on 27.05.2024 and the third petitioner was arrested and remanded to judicial custody on 29.05.2024. 2. The prosecution case, in brief, is that; on 26.05.2024, at around 21:45 hrs., the accused, in furtherance of their common intention, had wrongfully restrained the de facto complainant and the first accused brandished a sword towards his neck. It is only because he warded off the attack, he did not lose his life. But the ``` BAIL APPL. NO. 5242 OF 2024 ``` ``` -: 3 :- ``` second accused hit him on his shoulder and the third accused beat him. The de facto complainant suffered injuries on his head and shoulder. Thus, the accused have committed the above offences. 3. Heard; Sri.Priyesh Kumar M.P., the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the respondents. 4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating Officer has deliberately incorporated Section 308 of the IPC to see that the petitioners are incarcerated. There is no material to prove that the petitioners have committed the offence under Section 308 of the IPC. In any given case, the petitioners have been in judicial custody for nearly 58 days, the investigation in the case is complete ``` BAIL APPL. NO. 5242 OF 2024 ``` ``` -: 4 :- ``` and recovery has been effected. Therefore, the petitioners may be enlarged on bail. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioners are habitual offenders. The first petitioner is involved in eight other crimes and the second petitioner is involved in two other crimes. If the petitioners are released on bail, there is every likelihood of them intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed. 6. The learned counsel for the petitioners refuted the submissions of the learned Public Prosecutor and made available the judgments in Crime Nos.409/2016, 896/2014, 480/2013, 877/2023 and 109/2013 to substantiate the fact that the first petitioner has been acquitted in the above crimes. According to him, as on today, the first petitioner is involved only in two crimes for committing minor offences. Therefore, the first petitioner cannot be branded ``` BAIL APPL. NO. 5242 OF 2024 ``` ``` -: 5 :- ``` as a habitual offender. Similarly, the second petitioner is also involved only in two crimes, that too, of the years 2014 and 2019. Hence, the petitioners may be enlarged on bail. 7. The prosecution case is that; the petitioners had wrongfully restrained the de facto complainant and assaulted him and he suffered grievous injuries. The fact remains that the petitioners have been in judicial custody for nearly 58 days, the investigation in the case is complete and recovery has been effected. 8. 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. ``` BAIL APPL. NO. 5242 OF 2024 ``` ``` -: 6 :- ``` 9. 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. 10. The principle that bail is the rule and jail is an exception is 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. 11. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly considering the fact that the petitioners have been in judicial custody for nearly 58 ``` BAIL APPL. NO. 5242 OF 2024 ``` ``` -: 7 :- ``` days, the investigation in the case is complete and recovery has been effected, I am of the firm view that the petitioners are entitled to be enlarged on bail. Hence, I am inclined to allow the application, but subject to conditions. 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) 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 on - Investigating Officer every Saturday between 9 a.m. and 11 a.m till the final report is laid. 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 ``` BAIL APPL. NO. 5242 OF 2024 ``` ``` -: 8 :- ``` as to dissuade them 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 have no they - passports, 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 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. ``` BAIL APPL. NO. 5242 OF 2024 ``` ``` -: 9 :- ``` (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]. **Sd/C.S. DIAS, JUDGE** Jvt/25.7.2024 ``` BAIL APPL. NO. 5242 OF 2024 ``` ``` -: 10 :- ``` ## **`APPENDIX OF BAIL APPL.5242/2024`** ``` PETITIONER ANNEXURES :- ``` ``` Annexure AA TRUE COPY OF THE BAIL ORDER OF THE HON'BLE SESSIONSCOURT,THALASSERY,INCRL.MC NO.1056/2024 IN CRIME NO.272/2024 OF KANNAVAM POLICE STATION DATED 19.06.2024 ```