Sumesh S. v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 22[ND] DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 ``` ## `BAIL APPL. NO. 1991 OF 2024` ``` CRIME NO.109/2024 OF Cherthala Police Station, Alappuzha PETITIONER: ``` ``` SUMESH.S, AGED 34 YEARS S/O SUKUMARAN, THAYYIL, CHERTHALA.P.O, CHERTHALA NORTH, ALAPPUZHA DISTRICT, PIN - 688539 ``` ``` BY ADVS. ``` ``` T.P.SANTHOSH KUMAR C.H.ABDUL RASAC ``` ## `RESPONDENTS:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` pp smt shynimol v o ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No.1991 of 2024 ## **-: 2 :-** ## **C.S.DIAS,J.** = = = = = = = = = = = = = = = = = = = = **B.A No.1991 of 2024** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of March, 2024 ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 4[th] accused in Crime No.109/2024 of the Cherthala Police Station, Alappuzha, registered against the accused (4 in number), for allegedly committing the offences punishable under Sections 294(b), 341, 506, 323, 324, 326 and 308 r/w 34 of the Indian Penal Code. The petitioner was arrested on 27.02.2024. 2. The crux of the prosecution case is that; on 14.01.2023 at about 18 hrs, while the defacto complainant, his brother and his cousin were travelling on a motor cycle, the 1[st] accused pushed down the defacto complainant and abused him in vulgar language. When the relatives of the defacto complainant attempted to obstruct the 1[st] accused, B.A No.1991 of 2024 ## **-: 3 :-** the 2[nd] and 3[rd] accused also assaulted them. Subsequently, the 1[st] accused hit on the cousin of the defacto complainant with a knuckle duster which resulted in the fracture of his teeth. Thus, the accused has committed the above offence. 3. Heard Sri. Santhosh Kumar T.P, the learned counsel appearing for the petitioner and Smt. Shynimol V.O, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of the First Information Statement would substantiate that, there is no specific overt act alleged against the petitioner so as to attract the offences under 326 and 308 of the Indian Penal Code. The petitioner has been in judicial custody since 27.02.2024. Accused 1 to 3 are already enlarged on bail by the Court of Session, Alappuzha. The investigation in the case is practically complete and recovery has been effected. B.A No.1991 of 2024 ## **-: 4 :-** Therefore, the petitioner may be enlarged on bail. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. Nonetheless, she conceded to the fact that the accused 1 to 3 have been released on bail, the investigation in the case is practically complete and recovery has been effected. 6. On an analysis of the materials on record, it is seen that, it was accused 1 to 3 who had caused the injuries to the injured in this case. The allegation against the petitioner was that he accompanied accused 1 to 3 while the incident occurred. The fact remains that accused 1 to 3 have already been released on bail by the Court of Session. 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 ## B.A No.1991 of 2024 ## **-: 5 :-** 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 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. On an anxious consideration of the facts, the rival B.A No.1991 of 2024 ## **-: 6 :-** submissions made across the Bar, the materials placed on record, and especially taking into account the fact that the petitioner has been in judicial custody since 27.02.2024, the investigation in the case is practically complete and recovery has been effected, and further accused 1 to 3 are already released on bail by the Court of Session, I am of the view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. (i) The petitioner shall be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction. (ii) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is laid, whichever is earlier. He shall also appear before the Investigating Officer as and when required; B.A No.1991 of 2024 ## **-: 7 :-** (iii) 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; (iv) The petitioner shall not commit any offence while he is on bail; (v) 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; (vi) 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. (vii) Applications for deletion/modification of the bail conditions shall be filed and entertained before 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 B.A No.1991 of 2024 ## **-: 8 :-** 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 Anr.**_ [2020 (1) KHC 663]. Sd/- **C.S.DIAS, JUDGE** Sbna/