VIPIN v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 31[ST] DAY OF JULY 2024 / 9TH SRAVANA, 1946 BAIL APPL. NO. 5654 OF 2024 ``` ``` CRIME NO.826/2024 OF TIRUR POLICE STATION, MALAPPURAM ``` ``` PETITIONER/ACCUSED: ``` ``` VIPIN, AGED 29 YEARS S/O. PRABHAKARAN, PUTHANIYIL HOUSE, THRIPRANGODE P.O, ANAPPADI, MALAPPURAM DISTRICT, PIN - 676108 BY ADVS. SRI.P.T.SHEEJISH SRI.A.ABDUL RAHMAN (A-1917) ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 ``` ``` BY SMT.SEETHA S, SR.PP. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.5654 of 2024 ``` ``` 2 ``` ## **`ORDER`** ## **Dated this the 31[st] day of July, 2024** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhitha, 2023, by the sole accused in Crime No.826/2024 of the Tirur Police Station, Malappuram, which is registered against him for allegedly committing the offence punishable under Section 308 of the Indian Penal Code, 1860 (for short, ‘IPC’). The petitioner was arrested and remanded to judicial custody on 09.06.2024. 2. The essence of the prosecution case is that; on 15.05.2024, at around 02.00 hours, the accused, drove a lorry without head lights at excessive speed, with the full knowledge that it could cause death to the drivers of the other vehicles and pedestrians, and hit on the motorcycle driven by the defacto ``` B.A.No.5654 of 2024 ``` ``` 3 ``` complainant. The Defacto complainant fell on the ground and suffered grievous injuries. Thus, the accused has committed the above offence. 3. Heard; Sri.P.T.Sheejish, the learned counsel appearing for the petitioner and Smt.Seetha S, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime at the instance of the Investigating Officer due to his previous animosity towards the petitioner. The offence under Section 308 IPC cannot be attributed against the petitioner. In any given case, the petitioner has been in judicial custody for the last 53 days, the investigation in the case is complete and recovery has been effected. Therefore, the petitioner’s further detention is not necessary. Hence, the ``` B.A.No.5654 of 2024 ``` ``` 4 ``` application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the petitioner is a habitual offender. The petitioner is an accused in four other crimes for allegedly committing the offences punishable under Section 379 of the IPC read with Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short, ‘the Sand Act’). Moreover, there was a preventive detention order passed against the petitioner under the KAAPA Act, directing him, not to get involved in any case for a period of six months from 20.12.2023. It is just prior to the expiry of the restriction period, the petitioner has committed the present crime. If the petitioner is enlarged on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed. ``` 5 ``` ## **`B.A.No.5654 of 2024`** 6. The learned counsel for the petitioner refuted the submissions of the learned Public Prosecutor stating that the three crimes registered against the petitioner are for allegedly committing the offence under the Sand Act. Even though there was a restriction order passed under the KAAPA Act, the present crime has been deliberately registered against the petitioner due to the animosity by the Investigating Officer against the petitioner. The time period fixed by the restriction order has come to an end on 20.06.2024. The petitioner has been in judicial custody for the last 53 days, investigation in the case is complete and recovery has been effected. Therefore, the petitioner may be enlarged on bail. 7. The prosecution allegation against the petitioner is that, he drove a lorry in rash and negligent manner without head lights, with the full knowledge that it would cause death to pedestrians ``` B.A.No.5654 of 2024 ``` ``` 6 ``` and drivers of the other vehicles, and hit against the motorcycle of the defacto complainant. The fact remains that the petitioner has been in judicial custody for the last 53 days, the investigation in the case is practically complete, recovery has been effected and final report has been filed. Now the case is now pending committal proceedings. 8. It is well settled in **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], that merely because a person has an antecedent, the same shall not be treated as a ground to deny bail to that person. 9. 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 ``` B.A.No.5654 of 2024 ``` ``` 7 ``` be improper on the part of the Court to refuse bail solely on the ground of former conduct. 10. 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. 11. 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. 12. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on ``` B.A.No.5654 of 2024 ``` ``` 8 ``` considering the fact that the investigation in the case is complete and final report has been laid, I am of the firm 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: - (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 ``` B.A.No.5654 of 2024 ``` ``` 9 ``` 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; - (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. ``` B.A.No.5654 of 2024 ``` ``` 10 ``` (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