Sujith T.P and others 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. 3310 OF 2024` ``` CRIME NO.481/2024 OF OTTAPALAM POLICE STATION, PALAKKAD ``` ## `PETITIONERS:` ``` 1SUJITH T.P AGED 35 YEARS S/O.SUNDARAN, THEKKEPURACKAL HOUSE, CHERUMUNDASSERY P.O, AMBALAPPARA, OTTAPALAM, PALAKKAD DISTRICT., PIN – 679512 2HARIHARAN AGED 26 YEARS S/O.RAVIKUMAR, THACHUPARAMBU HOUSE, CHERUMUNDASSERY P.O, AMBALAPPARA, OTTAPALAM, PALAKKAD DISTRICT., PIN – 679512 3SREENIVASAN AGED 27 YEARS S/O.RAVIKUMAR, THACHUPARAMBU HOUSE, CHERUMUNDASSERY P.O, AMBALAPPARA, OTTAPALAM, PALAKKAD DISTRICT., PIN – 679512 4VAISAKH AGED 30 YEARS S/O.VASUDEVAN, CHERUKULANGARA HOUSE, CHERUMUNDASSERY P.O, AMBALAPPARA, OTTAPALAM, PALAKKAD DISTRICT., PIN – 679512 5SANAL K AGED 33 YEARS KOLIKATTIL HOUSE, CHERUMUNDASSERY P.O, AMBALAPPARA, OTTAPALAM, PALAKKAD DISTRICT., PIN – 679512 6VIMAL M AGED 21 YEARS S/O.MANOJ, MALLANCHOLA HOUSE, CHERUMUNDASSERY P.O, AMBALAPPARA, OTTAPALAM, PALAKKAD DISTRICT., ``` _B.A.No.3310/2024_ _-:2:-_ ``` PIN – 679512 ``` ``` BY ADV NIREESH MATHEW ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP T V NEEMA ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3310/2024_ _-:3:-_ _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 Nos.1 to 6 in Crime No.481/2024 of the Ottapalam Police Station, Palakkad, registered against the accused for allegedly committing the offences punishable under Sections 143, 147, 148, 323, 324 & 308 read with Section 149 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioners were arrested on 11.04.2024. 2. The gravamen of the prosecution case is that: the accused Nos.1 to 15, in prosecution of their common intention and out of the previous animosity towards the de-facto complainant and his friends, formed themselves into an unlawful assembly, on 10.04.2024, at around 20.30 hours, and the first accused assaulted the de-facto complainant on his _B.A.No.3310/2024_ _-:4:-_ head and shoulder with a sharp weapon. When the de-facto complainant fell on the ground, the accused Nos.2 to 14 kicked him. When he attempted to run away, the first accused, with an intention to kill the de-facto complainant, brandished an iron made weapon towards the de-facto complainant. It is only because the de-facto complainant warded off the attack, he did not lose his life. Thus, the accused have committed the above offences. 3. Heard; Sri. Nireesh Mathew, the learned counsel appearing for the petitioners and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Section 308 of the IPC to deny bail to the petitioners. The said _B.A.No.3310/2024_ _-:5:-_ offence will not be attracted to the facts of the case. In any given case, the petitioners have been in judicial custody for the last 11 days, the investigation in the case is practically complete, and recovery has been effected. Moreover, there is no specific overt act alleged against the accused Nos.2 to 15, since it was only the first accused who had allegedly assaulted the de-facto complainant with a weapon. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She contended that the investigation in the case is still in progress. She also stated that only the petitioners 1 to 6 have been arrested. If the petitioners are released on bail, they would certainly interfere with the investigation and intimidate the witnesses. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the specific overt act is only alleged against the first accused/first petitioner. _B.A.No.3310/2024_ _-:6:-_ 6. On an appreciation of the materials on record, especially Annexure-1 First Information Report[FIR], and it can be concluded that, it was the first accused who inflicted injuries on the de-facto complainant. The only allegation against the other accused is that they have also kicked the de-facto complainant. Therefore, on a prima-facie appreciation of the materials on record, it can be seen that the offence under Section 308 will be attracted only against the first accused/first petitioner. Thus, I am of the view that the petitioners 2 to 6 can be enlarged on bail. 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 _B.A.No.3310/2024_ _-:7:-_ 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 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 _B.A.No.3310/2024_ _-:8:-_ 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 requirements under Article 21 of the Constitution of India. 11. On an anxious consideration of the facts, the rival submissions made across the Bar, the materials placed on record, and the findings rendered in the preceding paragraphs, I am inclined to allow the application filed by the petitioners 2 to 6. But, since there is a specific overt act alleged against the first accused, who had allegedly inflicted a grievous injury on the de-facto complainant, I am not satisfied that the first petitioner has made out sufficient grounds to be released on bail at this stage. Hence, his application is only to be dismissed. _B.A.No.3310/2024_ _-:9:-_ In the result, - I) The application filed by the first petitioner/first accused is dismissed. II) The application filed by the petitioners 2 to 6/accused Nos.2 to 6 is allowed on them executing a bond for Rs.1,00,000/- (Rupees one lakh only) each 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 2 to 6 shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is filed. They shall also appear before the Investigating Officer as and when required; - (ii) The petitioners 2 to 6 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any _B.A.No.3310/2024_ _-:10:-_ ## manner, whatsoever; - (iii)The petitioners 2 to 6 shall not commit any offence while they are on bail; - (iv) The petitioners 2 to 6 shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no 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 moved and entertained by the court below. (vii) Needless to mention, it would be well within the _B.A.No.3310/2024_ _-:11:-_ powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners 2 to 6 even while the petitioners 2 to 6 are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State(NCT of Delhi) and Anr.** [2020 (1) KHC 663]. Sd/- ## **C.S.DIAS,JUDGE** DST/23.04.24 //True copy// P.A. To Judge