SREEKAANTH THATHUPARA @ PAAKKARAN v. STATE OF KERALA

1 BA No.1866 of 2024 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1866 OF 2024 ``` ``` CRIME NO.135/2024 OF Kelakom Police Station, Kannur PETITIONER/S: ``` ``` SREEKAANTH THATHUPARA @ PAAKKARAN, AGED 37 YEARS S/O MOHANAN, THATHUPARA (H), MANNAMCHERI,KOTTIYOOR , KANNUR RURAL,KANNUR DISTRICT, PIN - 670651 ``` ``` BY ADVS. RESHMA E. ANNA SONIE ``` ## **`RESPONDENT/S:`** |**`1`**|**`STATE OF KERALA,`**| |---|---| ||**`REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF`**| ||**`KERALA, PIN - 682031`**| |**`2`**|**`THE STATION HOUSE OFFICER,`**| ||**`(CRIME.NO. 135 OF 2024 OF KELAKOM POLICE STATION ,`**| ||**`KANNUR RURAL DISTRICT)KANNUR, PIN - 670674`**| ## **`OTHER PRESENT:`** ``` Sr PP Smt Neema T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1866 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.1866 of 2024** ## **----------------------------------Dated this the 14[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 first accused in Crime No.135/2024 of the Kelakom Police Station, Kannur, registered against the accused (three in number), for allegedly committing the offences punishable under Secs. 452, 506, 341, 427 read with Sec.34 of the Indian Penal Code. Subsequently, the offence under Sec.307 was incorporated. The petitioner was arrested on 29.2.2024. 2. The gist of the prosecution case is that: On 23.2.2024 at around 20.30 hours, the accused 1 and 2 reached the house of the de facto complainant and attempted to attack his father, 3 BA No.1866 of 2024 mother and daughter with a sword and threatened to murder them. The accused swept the sword towards the de facto complainant. It is also alleged that the first accused committed mischief in the house of the de facto complainant and caused him a loss of Rs.200/-. Thus, the accused have committed the above offences. 3. Heard; Smt.Reshma.E, the learned counsel appearing for the petitioner and Smt. Neema T.V, the learned Public Prosecutor appearing for the respondents. 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. The offence under Sec.307 has been deliberately incorporated subsequently, only to deny bail to the petitioner. The very fact that the incident occurred on 23.2.2024, the FIR was registered on 24.2.2024 and Sec.307 was incorporated on 26.2.2024 4 BA No.1866 of 2024 proves the falsity of the crime. In any given case, the petitioner has been in judicial custody since 29.2.2024, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner’s further detention is not necessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner is a person with criminal antecedents. The offence under Sec.307 has been incorporated because the petitioner had threatened the de facto complainant and his relatives to do away with their lives. The said threat is more than sufficient to attract the offence under Sec.307. The investigation is still in progress. If the petitioner is released on bail, he would sabotage the investigation and intimidate the witnesses. Hence, the application may be dismissed. 5 BA No.1866 of 2024 6. The crux of the prosecution allegation is that the accused 1 and 2 in furtherance of their common intention, attempted to murder the de facto complainant and his relatives and swept the sword across the face of the de facto complainant and also committed mischief in his residence. 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 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 6 BA No.1866 of 2024 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. 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. 10. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, especially taking into account the fact that the petitioner has been in judicial custody since 29.2.2024, that the investigation in the case is practically complete and that the recovery has been effected, notwithstanding the criminal antecedents alleged against the petitioner, I am of the definite 7 BA No.1866 of 2024 view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application. 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 make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such 8 BA No.1866 of 2024 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. (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 9 BA No.1866 of 2024 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/14.3.2024 **C.S.DIAS, JUDGE**