Subeesh v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2326 OF 2024 ``` ``` CRIME NO.165/2024 OF KAIPAMANGALAM POLICE STATION, THRISSUR, ``` ## **`Thrissur`** ## **`PETITIONER/ACCUSED:`** ``` SUBEESH, AGED 36 YEARS S/O. SARIN, KOZHIPARAMBIL HOUSE, ONAPARAMBU, PERINJANAM, PIN - 680686 ``` ``` BY ADVS. AMRIN FATHIMA J.RAMKUMAR SURUMI NAZAR STEFIN THOMAS ``` ## **`RESPONDENTS/COMPLAINANT:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER, KAIPAMANGALAM POLICE STATION, THRISSUR, PIN - 680681`** ## **`OTHER PRESENT:`** ## **`SR PP SMT. NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2326 of 2024** ``` 2 ``` ## **Dated this the 12[th] day of April, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the fourth accused in Crime No.165/2024 of the Kaipamangalam Police Station,Thrissur, registered against the accused ( five in number) for allegedly committing the offences under Sections 143, 147, 148, 341, 323, 324, 427 and 308 r/w 149 of the Indian Penal Code. The petitioner was arrested on 27.02.2024. 2. The crux of the prosecution case is that; on 22.02.2024 at around 22.00 hours, the accused, in furtherance of their common intention, formed themselves into an unlawful assembly, and the first accused hit the defacto complainant on different parts of his body with an iron pipe and caused grievous hurt to ``` 3 ``` ## **B.A. No.2326 of 2024** him. The accused 2 and 3 assaulted the defacto complainant with their hands. Similarly, the accused 4 and 5 damaged the parked bus belonging to the defacto complainant and caused him a loss of Rs.25,000/-. Thus, the accused have committed the above offences. 3. Heard; Smt. Amrin Fathima., learned counsel appearing for the petitioner and Smt. Neema. T.V. the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of First Information Report would substantiate that the offence under Section 308 will not be attracted against the petitioner. In any given case, the petitioner has been in judicial custody since 27.02.2024, the investigation in the case is practically complete, and recovery has been effected. Hence, the petitioner may be released on bail. ``` 4 ``` ## **B.A. No.2326 of 2024** 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that the petitioner is a person with criminal antecedents, since he is involved in eight other cases of similar nature. Nonetheless, she did not dispute the fact that the specific overt act of committing the offence under Section 308 of the IPC is attributed against the first accused. 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 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 **B.A. No.2326 of 2024** ``` 5 ``` 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 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. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that ``` 6 ``` ## **B.A. No.2326 of 2024** the petitioner has been in judicial custody since 27.02.2024, that the investigation in the case is practically complete, and the recovery has been effected, I am of the definite view that the petitioner’s further detention is not necessary. 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; ``` 7 ``` ## **B.A. No.2326 of 2024** (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 ``` 8 ``` ## **B.A. No.2326 of 2024** 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. (viii) 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/-** mtk/12.04.24 **C.S.DIAS, JUDGE** ``` 9 ``` ## **B.A. No.2326 of 2024** ## **`APPENDIX OF BAIL APPL. 2326/2024`** ## **`PETITIONER ANNEXURES`** ``` Annexure 1 ``` ``` ORDER DATED 01.03.2024 IN CRL M.P NO. 1175/2024 IN CRIME NO. 165/2024 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALUR ```