Varun P.G. and Kiran P.G. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** **BAIL APPL. NO. 2407 OF 2024** **CRIME NO.162/2024 OF ALAKODE POLICE STATION, KANNUR** ## **PETITIONERS/PETITIONERS/ACCUSED:** **1 VARUN. P.G. AGED 31 YEARS S/O. GOPIDAS, PULICKAL KIZHAKETHIL HOUSE, KOOLAMBI, KOTTAYAD.P.O., ALAKODE AMSOM, KANNUR DT., PIN - 670571 2 KIRAN.P.G , AGED 34 YEARS S/O. GOPIDAS, PULICKAL KIZHAKETHIL HOUSE,KOOLAMBI, KOTTAYAD.P.O., ALAKODE AMSOM,KANNUR DT., PIN - 670571 BY ADVS. V.A.SATHEESH V.T.MADHAVANUNNI** ## **RESPONDENT/RESPONDENT/STATE:** **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 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 2407 OF 2024** **2** ## **O R D E R** This application is filed under Section 439 of the Code of Criminal Procedure by the accused 1 and 2 in Crime No.162 of 2024 of the Alakode Police Station, Kannur, registered against the accused for allegedly committing the offences punishable under Sections 448, 324, 326 and 308 read with Section 34 of the Indian Penal Code. The petitioners were arrested on 11.03.2024. 2. The essence of the prosecution case is that: on 09.03.2024, at around 20.30 hours, the accused, in furtherance of their common intention, trespassed into the house of the de facto complainant – the paternal uncle – and the first accused attempted to attack the defacto complainant with a chopper on his shoulder and chest. It is only because the defacto complainant warded off the attack, he got injured on his neck. Thus, the accused have committed the above offences. 3. Heard Sri.Satheesh V.A., the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that petitioners are totally innocent of the allegations levelled against them. They have been falsely implicated in the crime. A **BAIL APPL. NO. 2407 OF 2024** **3** reading of Annexure A1 FIR would substantiate that the offences under Sections 326 and 308 of IPC will not be attracted. In any given case, the petitioners have been in judicial custody since 11.03.2024, the investigation in the case is practically complete, and recovery has been effected. Moreover, petitioners do not have any criminal antecedents. Hence, the petitioners may be released on bail. 5. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to show the petitioners' involvement in the crime. She made available the accident register-cum-wound certificate of the defacto complainant/injured dated 09.03.2024 issued by the Government Medical College Hospital, Kannur to demonstrate the fact that the injured had suffered a fracture of his spine. She submitted that the investigation in the case is in progress. If the petitioners are released on bail, there is every likelihood of them tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed. 6. On a scrutiny of the materials on record, it can be seen that the prosecution allegation against the petitioners is that they trespassed into the house of the defacto complainant – their uncle – and attacked him with a chopper. The accident register- **BAIL APPL. NO. 2407 OF 2024** **4** cum-wound certificate shows that the injured had suffered a spinal fracture and other lacerated wounds. The said certificate _prima facie_ shows the active involvement of the petitioners in the crime. However, the fact remains that the petitioners have been in judicial custody since 11.03.2024, the investigation in the case is complete, the recovery has been effected and the petitioners do not have any criminal antecedents. 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 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. **BAIL APPL. NO. 2407 OF 2024** **5** 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 submissions made across the Bar, the materials placed on record, and especially on considering the fact that the petitioners have been in judicial custody since 11.03.2024, that the investigation in the case is practically complete and recovery has been effected, and further that the petitioners do not have criminal antecedents, I am of the firm view that the petitioners are entitled to be released on bail. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioners to be released on bail on them 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, which shall be subject to the following conditions: (i) The petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final **BAIL APPL. NO. 2407 OF 2024** **6** report is laid. They shall also appear before the Investigating Officer as and when required; (ii) The petitioners 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 petitioners shall not commit any offence while they are on bail; (iv) The petitioners shall surrender their passport, if any, before the court below at the time of execution of the bond. If they have no passport, they 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 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 **BAIL APPL. NO. 2407 OF 2024** **7** by the petitioners even while the petitioners are 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** rp **BAIL APPL. NO. 2407 OF 2024** **8** ## **APPENDIX OF BAIL APPL. 2407/2024** ## **PETITIONER ANNEXURES** |**Annexure**|**A TRUE COPY OF THE FIR IN CRIME NO.162/2024 OF**| |---|---| |**A1`**|**ALAKODE POLICE STATION**|