Varghese R v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 BAIL APPL. NO. 2541 OF 2024 ``` ``` CRIME NO.34/2024 OF MANNANTHALA POLICE STATION, ``` ## **`Thiruvananthapuram`** ``` AGAINST THE ORDER DATED IN CMP NO.283 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V, THIRUVANANTHAPURAM(SPECIAL COURT- MARKLIST CASES) ``` ## **`PETITIONER/SECOND ACCUSED:`** ``` VARGHESE R AGED 43 YEARS S/O. BABU, RENTED AT SATHI LODGE, NEETHI NAGAR, NEAR PEROORKADA JUNCTION, CHETTIVILAKOM WARD, KUDAPPANAKUNNU VILLAGE. (FROM NASRATH HOUSE, AMRA 34, ANCHUMUKKU VAYAL, KINAVOOR WARD, KUDAPPANAKUNNU VILLAGE), PIN - 695005 ``` ``` BY ADV B.SABITHA (DESOM) ``` ## **`RESPONDENT/STATE:`** ``` 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 04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2541 of 2024** ``` 2 ``` ## **Dated this the 4[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 second accused in Crime No.34/2024 of the Mannanthala Police Station, Thiruvananthapuram registered against the accused (four in number) for allegedly committing the offences punishable under Sections 409, 420, 120(b) and 34 of the Indian Penal Code. The petitioner was arrested on 16.01.2024. 2. The essence of the prosecution case is that: on 04.11.2023 at 12 p.m., the first accused, who was the former Branch Manager of the Catholic Syrian Bank, Nalanchira branch, took 1727.77 grams of gold ornaments having a value of Rs.96,23,678/- from the strong room of the bank and handed over the same to the **B.A. No.2541 of 2024** ``` 3 ``` second accused, who in turn gave it to the third accused. Thereafter, the fourth accused replaced the stones and pearls of the said ornaments and melted the gold ornaments in his house. Subsequently, the gold was taken for testing its purity. Thereafter, the gold was sold to the Kerala Jewellery, East Fort and the accused shared the profit between them. Thus, the accused have committed the above offences. 3. Heard; Smt Sabitha, learned counsel appearing for the petitioner and Smt. Shynimol. V.O. the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that, petitioner is totally innocent of the accusations levelled against him. The allegation against the petitioner is that he took the gold ornaments from the first accused and handed it over to the third accused, who in turn gave it to the fourth accused. In any **B.A. No.2541 of 2024** ``` 4 ``` given case, the petitioner has been in judicial custody since 16.01.204, which is 70 days, the investigation in the case is practically complete, and recovery has been effected. By the order dated 01.03.2024 in B.A. No.1539/2024, this Court has enlarged the third accused on bail. The petitioner is at par with the said accused. Therefore, the petitioner is entitled to the benefit of a similar order. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to show the involvement of the petitioner in the crime. The investigation in the case is not complete. If the petitioner is released on bail, there is every likelihood of him interfering with the investigation. Nonetheless, she conceded to the fact that the third accused has already been enlarged on bail by this Court as per the order of this Court in B.A. No.1539/2024. ``` 5 ``` ## **B.A. No.2541 of 2024** 6. In **Sanjay Chandra v. CBI,** [(2012) 1 SCC 40], the2024:KER:11608 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 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** , ``` 6 ``` ## **B.A. No.2541 of 2024** [(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 materials placed on record, and the rival submissions made across the Bar, particularly taking note of the fact that the petitioner has been in judicial custody since 16.01.2024, that the investigation in the case, so far as the petitioner is concerned, is practically complete and recovery has been effected, and further that the third accused has been enlarged on bail by this Court as per order in B.A. No.1539/2024, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application. ``` 7 ``` ## **B.A. No.2541 of 2024** 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 facts to the court or to any Police Officer or tamper with the evidence in any ``` 8 ``` ## **B.A. No.2541 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 ``` 9 ``` ## **B.A. No.2541 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/-** mtk/04.04.24 **C.S.DIAS, JUDGE**