Varun @ Yadhu v. State of Kerala

B.A.No.934 of 2024 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 13[TH] DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 BAIL APPL. NO. 934 OF 2024 CRIME NO.1661/2023 OF THALASSERY POLICE STATION, KANNUR ``` ## **`PETITIONER:`** ``` VARUN @ YADHU AGED 33 YEARS S/O SASIDHARAN, VELIKKOTH HOUSE, KARIVETTAM, GOPALPETTA, P.O TEMPLE GATE, THALASSERY, KANNUR DISTRICT, PIN - 670102 ``` ``` BY ADVS. PRAJIT RATNAKARAN ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.934 of 2024 2 **Dated this the 13[th] day of February, 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.1661/2023 of the Thalassery Police Station, Kannur, registered against him for allegedly committing the offences punishable under Sections 341, 324 and 308 of the Indian Penal Code, 1860. The petitioner was arrested on 26.12.2023.. 2. The gist of the prosecution case is that: on 25.12.2023, at around 06.30 hours, while the de facto complainant was returning from the church, the accused wrongfully restrained him and attempted to hit the defacto complainant with a beer bottle on his head. Since the de facto complainant warded of the attack, the hit only touched on the side of his head, but still the defacto B.A.No.934 of 2024 3 complainant sustained grievous injuries. If the beer bottle had hit the defacto complainant on his head, it would have resulted in his death. Thus, the accused has committed the above offences. 3. Heard; Sri.Prajit Ratnakaran, the learned counsel appearing for the petitioner and Smt. Seetha. S., the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the crime. Section 308 has been deliberately incorporated by the Investigating Officer only for the purpose of denying bail to the petitioner. The present case is politically motivated. It is only because the petitioner had shifted his side from the ruling party to the opposition party that the defacto complainant has registered the case. The allegation of the prosecution that the petitioner has B.A.No.934 of 2024 4 criminal antecedents because he is involved in 17 other cases is factually incorrect. Most of the cases alleged by the prosecution are prior to the year 2010. The petitioner has already been honorably acquitted in all those cases. The petitioner has been in judicial custody since 26.12.2024, which is more than 47 days. The petitioner is the sole breadwinner of the family. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She contended that the petitioner is a history sheeter. The petitioner is involved in 17 cases of different police stations in Kannur district. The investigation in the case is not complete. If the petitioner is released on bail, there is every likelihood of him B.A.No.934 of 2024 5 committing similar offences and causing a breach of the law in the locality. He is also likely to intimidate with the witnesses and tamper with evidence. Hence, the application may be dismissed. 6. The petitioner had moved a similar application before the Court of Session, Thalassery, which was dismissed by Annexure A1 order, taking into account the alleged antecedents of the petitioner i.e., he is involved in 17 other cases of similar nature. 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 a punitive and it would be improper on the B.A.No.934 of 2024 6 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. Subsequently, in **State of Kerala v. Raneef,** **[(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 B.A.No.934 of 2024 7 to infringement of their right to life guaranteed under Article 21 of the Constitution. 10. On a consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and especially taking note of the law laid in Sanjay Chandra (supra), and the fact that out of the 17 cases, only one case is of the year 2020 and all the other cases are prior to that and the petitioner is said to be acquitted, that the investigation in the case is practically complete, that the recovery has been effected, and that the petitioner has been in judicial custody for the last 47 days, I am of the definite view that the petitioner's continued detention is unnecessary. Hence, I am inclined to allow the bail applications, but subject to stringent conditions: B.A.No.934 of 2024 8 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 two months 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 them from disclosing such facts to the court or to any B.A.No.934 of 2024 9 Police Officer or tamper with the evidence in any 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. B.A.No.934 of 2024 10 (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 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** mtk/13.02.24 B.A.No.934 of 2024 11 ## **`APPENDIX OF BAIL APPL. 934/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE 1 ``` ``` TRUE COPY OF THE ORDER OF THE SESSIONS JUDGE, THALASSERY DATED 27-01-2024 IN CRL. M.C NO. 115/2024 ```