Vijay v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5660 OF 2024 ``` ``` CRIME NO.551/2024 OF KUZHALMANNAM POLICE STATION, PALAKKAD ``` ``` AGAINST THE ORDER DATED 04.07.2024 IN CRMP NO.5759 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PALAKKAD PETITIONER/SOLE ACCUSED: ``` ``` VIJAY, AGED 23 YEARS S/O.MOHANAN, KUNNEKKADU VEEDU, VILAYANOOR, THENKURISSI, PALAKKAD, PIN - 678501 ``` ``` BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL) ``` ## **`RESPONDENT/COMPLAINANT AND STATE:`** ``` STATE OF KERALA, ``` ``` REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` BY SR.PP.SRI.C.S.HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 01.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.5660 of 2024 ``` ``` 2 ``` ## **`ORDER`** ## **Dated this the 01[st] day of August, 2024** The application is filed under Section 483 of the Bharatiya Nagarik Surksha Sanhitha, 2023, by the sole accused in Crime No.551/2024 of the Kuzhalmannam Police Station, Palakkad, registered against him for allegedly committing the offences punishable under Sections 341, 294(b), 326 and 308 of the Indian Penal Code, 1860. The petitioner was arrested and remanded to on judicial custody 01.07.2024. 2. The gist of the prosecution case is that; on 30.06.2024, at around 16.00 hours, the accused attacked the de facto complainant with a wooden stick infront of his house, due to a quarrel between them regarding logging of rain water, and inflicted ``` 3 ``` ## **`B.A.No.5660 of 2024`** grievous injuries on the defacto complainant. Thus, the accused has committed the above offences. 3. Heard; Sri.V.A.Johnson, the learned counsel appearing for the petitioner and Sri.C.S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Sections 326 and 308 of the IPC to see that the petitioner is incarcerated. The petitioner has been in judicial custody for the last 30 days, the investigation in the case is practically complete and recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed. ``` B.A.No.5660 of 2024 ``` ``` 4 ``` 5. The learned Public Prosecutor opposed the application. He submitted that investigation in the case is in progress. He also submitted that if the petitioner is enlarged on bail, there is every likelihood of him tampering the evidences and intimidating the witnesses. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, he attacked the defacto complainant and inflicted grievous injuries on him. The fact remains that the petitioner has been in judicial custody for the last one month, the investigation in the case is complete and recovery has been effected, and further the petitioner does 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 ``` B.A.No.5660 of 2024 ``` ``` 5 ``` 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 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. The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. ``` B.A.No.5660 of 2024 ``` ``` 6 ``` 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into consideration the fact that the petitioner has been in judicial custody for the last 30 days, the investigation in the case is complete and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. 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: ``` B.A.No.5660 of 2024 ``` ``` 7 ``` (i) The petitioner shall appear before the Officer on Investigating every Saturday between 9 a.m. and 11 a.m till the final report is laid. 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 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; ``` B.A.No.5660 of 2024 ``` ``` 8 ``` - (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 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** NAB