Vishnu K. Babu v. State of Kerala

1 BA No.3294 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 3294 OF 2024 ``` ``` CRIME NO.315/2024 OF THALAYOLAPARAMBU POLICE STATION, Kottayam ``` ``` PETITIONER/S: ``` ``` VISHNU K. BABU AGED 31 YEARS ``` ``` S/O SURESH BABU, KANJIAMPARAMBU HOUSE, KARIPPADOM KARA, VELLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM, PIN - 686605 ``` ``` BY ADVS. C.Y.VINOD KUMAR C.ANILKUMAR (KALLESSERIL) ``` ## **`RESPONDENT/S:`** ``` 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 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.3294 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.3294 of 2024** ## **----------------------------------Dated this the 23[rd] day of April, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.315/2024 of the Thalayolaparambu Police Station, Kottayam registered against him, for allegedly committing the offences under Sections 406, 409 and 420 of the Indian Penal Code. The petitioner was arrested on 19.3.2024. 2. The crux of the prosecution case, is that; the accused, while working as a Sub Group Officer at Thiruppuram Sree Krishna Swami Temple, Thalayolaparambu between the period from 1.1.2019 to 31.12.2022, had misappropriated Rs.24/- 3 BA No.3294 of 2024 Lakh which was offered as donation by the devotees. Thus, the accused has committed the above offences. 3. Heard; Sri. C.Y Vinod Kumar, the learned counsel appearing for the petitioner and Smt.Neema T.V, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He was only one among the seven employees of the temple. The entire amount that was received as donation were promptly entered into the registers maintained by the temple. In fact, the petitioner has paid a substantial amount to the temple. The petitioner is willing to repay the balance amount also. In any given case, the petitioner has been in judicial custody since 19.3.2024, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 4 BA No.3294 of 2024 5. The learned Public Prosecutor seriously opposed the application. She submitted that the investigation in the case is in progress. She further stated that if the petitioner is enlarged on bail, he may tamper with the evidence. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, while he was working in the temple during the period between 2019 and 2022, he had misappropriated Rs.24/- Lakh. The petitioner contends that even as per the temple administration, the loss was only Rs.10,24,459/-. The petitioner has already repaid Rs.15/- Lakh to the temple. Be that as it may, the petitioner has been in judicial custody for the last more than one month, the Investigation in the case is practically complete and recovery has been effected. 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 5 BA No.3294 of 2024 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 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. 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 to infringement of their right to life guaranteed under Article 21 of the Constitution. 6 BA No.3294 of 2024 10. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on comprehending the fact that the petitioner has been in judicial custody for the last one month, that the investigation in the case is practically complete, that the recovery has been effected and further that the petitioner does not have any criminal antecedents, I am of the firm view that the petitioner is 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 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 till the 7 BA No.3294 of 2024 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; (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. 8 BA No.3294 of 2024 (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/- sks/23.4.2024 **C.S.DIAS, JUDGE**