Sudharshan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 3340 OF 2024 ``` ``` CRIME NO.337/2024 OF VADAKKANCHERRY POLICE STATION, PALAKKAD AGAINST THE ORDER/JUDGMENT DATED 09.04.2024 IN CRMC NO.1943 OF 2024 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD PETITIONER/ACCUSED: ``` ``` SUDHARSHANAN AGED 53 YEARS S/O.CHANDRAN.A.K, KUNNATHU HOUSE, KANNAMBRA-II VILLAGE, MANJAPRA.P.O, URUNIPARA, PALAKKAD, PIN - 678685 ``` ## **`BY ADV V.A.JOHNSON (VARIKKAPPALLIL)`** ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.3340 of 2024** ``` 2 ``` ## **Dated this the 23[rd] 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 accused in Crime No.337/2024 of the Vadakkancherry Police Station, Palakkad, registered against the accused for allegedly committing the offences punishable under Sections 341, 323, 324, 326, 506 (ii) and 308 of the Indian Penal Code. The petitioner was arrested on 22.03.2024. 2. The crux of the prosecution case is that; on 20.3.2024, at around 7.10 hours, the accused out of his previous animosity towards the de facto complainant, wrongfully restrained the de facto complainant and hit him with an hammer on his right knee joint and assaulted **B.A. No.3340 of 2024** ``` 3 ``` him on the different parts of his body. The de facto complainant suffered a fracture on his right knee joint. When the wife and daughter of the de facto complainant attempted to intervene in the matter, the accused assaulted them also. It is only because the wife and daughter of the de facto complainant intervened in the matter, the de facto complainant did not loose his life. Thus, the accused has committed the above offences. 3. Heard; Sri. V.A. Johnson, the learned counsel appearing for the petitioner and Smt.Neema T.V. the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The Investigating Officer has deliberately incorporated Sections 326 and 308 of IPC to deny bail to the petitioner. A reading of First Information Report would **B.A. No.3340 of 2024** ``` 4 ``` substantiate that the above offences will not be attracted to the facts of the case. At any rate, the petitioner has been in judicial custody since 22.3.2024, the investigation in the case is complete, recovery has been effected and the petitioner does not have any criminal antecedents. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that investigation is in progress. She further stated that if the petitioner is released on bail, he would sabotage the investigation. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, due to his previous animosity towards the de facto complainant, he assaulted the de facto complainant with a hammer and caused a fracture to his knee joint. It is also alleged that the petitioner assaulted the wife and daughter of the de facto complainant. The fact remains ``` 5 ``` ## **B.A. No.3340 of 2024** that the petitioner has been in judicial custody for the last 30 days, the investigation in the case is complete and recovery has been effected. 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 discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the ``` 6 ``` ## **B.A. No.3340 of 2024** 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. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. **B.A. No.3340 of 2024** ``` 7 ``` 11. 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. 12. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on comprehending the fact that the petitioner has been in judicial custody for the last 30 days, the investigation in the case is complete, that recovery has been effected and the petitioner has no criminal antecedents, 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 ``` 8 ``` ## **B.A. No.3340 of 2024** 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 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 ``` 9 ``` ## **B.A. No.3340 of 2024** 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 ``` 10 ``` ## **B.A. No.3340 of 2024** 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/-** **C.S.DIAS, JUDGE** rmm/23/4/2024