Shinto v. State of Kerala

1 BA No.1273 of 2024 ## **`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. 1273 OF 2024 ``` ``` CRIME NO.2244/2023 OF Kundara Police Station, Kollam PETITIONER/S: ``` ``` SHINTO AGED 34 YEARS S/O. JOY, RESIDING AT PANAYAMCODE, THEKKATHIL, KANJIRAMCODE, KUNDARA.P.O., KOLLAM, PIN - 691501 BY ADVS. S.SREEKUMAR (KOLLAM) K.VIJAYAN ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER, KUNDARA POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, PIN - 682031 ``` ``` SMT.SEETHA.S, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1273 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.1273 of 2024** ## **----------------------------------Dated this the 23[rd] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.2244/2024 of the Kundara Police Station, Kollam, registered against the accused, for allegedly committing the offences punishable under Secs. 452, 294(b), 506, 323, 324 and 308 read with Section 34 of the Indian Penal Code ( for short, ‘IPC’). Subsequently, Sec.307 of the IPC was incorporated. The petitioner was arrested on 18.1.2024. 2. The prosecution case, in brief, is that: on 23.11.2023 at about 10.30 p.m, the accused attacked the defacto 3 BA No.1273 of 2024 complainant and his son with an iron rod and a sword. Thus, the accused has committed the above offences. 3. Heard; Sri.S.Sreekumar, the learned counsel appearing for the petitioner and Smt.Seetha.S, 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. At any rate, the offence under Sec.308 will not stand attracted. He is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner had caused serious injuries to the two injured. The petitioner is a person with criminal antecedents. The petitioner is involved in six other crimes of similar nature. She further submitted that the 4 BA No.1273 of 2024 investigation in the case is in progress. If the petitioner is let off on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Nonetheless, she conceded to the fact that the petitioner has been in judicial custody for the last thirty five days, that the second accused has been granted bail by this Court on 19.2.2024 as per order in BA No.678/2024 and that the recovery has been effected. 6. 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. 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 5 BA No.1273 of 2024 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. 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 materials placed on record, the rival submissions made across the Bar, particularly taking note of the fact that the petitioner has been in judicial custody since 18.1.2024, that this Court has granted an order of bail to the second accused on 19.2.2024, that although the petitioner has criminal antecedents, four out of the six cases registered 6 BA No.1273 of 2024 against the petitioner are prior to the year 2020 and two cases are in the year 2022, that the petitioner has been in judicial custody for the last thirty five days, that the investigation in the case is practically complete and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I hold that the petitioner is entitled to be released on bail. 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 7 BA No.1273 of 2024 earlier. 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 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. 8 BA No.1273 of 2024 (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/- sks/23.2.2024 **C.S.DIAS, JUDGE**