Vishnu Mohan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 BAIL APPL. NO. 4328 OF 2024 ``` ``` CRIME NO.267/2024 OF Mavelikkara Police Station, Alappuzha PETITIONER/S: ``` ``` VISHNU MOHAN AGED 26 YEARS S/O.MOHANA KUMAR P K, AMBADI, KALLUMALA VIA, VETTIYAR VILLAGE, MAVELIKKARA, THAZHAKARA (PART) ALAPPUZHA DISTRICT., PIN - 690110 ``` ``` BY ADV ATHUL POULOSE ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Sri C.S Hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.4328 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.4328 of 2024** ## **-----------------------------------** ## **Dated this the 29[th] day of May, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the fifth accused in Crime No.267/2024 of the Mavelikkara Police Station, Alappuzha, registered against the accused (six in number), for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 294(b), 323, 324, 427, 325 and 308 r/w Section 149 of the Indian Penal Code and Sec.92(b) of the Right of Persons with Disabilities Act, 2016. The petitioner was arrested on 21.5.2024. 2. The crux of the prosecution case is that; on 12.3.2024, at around 20.30 hours, the accused, in prosecution of their common intention, wrongfully restrained the de facto complainant and the first accused abused the de facto complainant in obscene language and 3 BA No.4328 of 2024 hit him on his left thigh with an iron rod and also on his left eye. The second accused also hit the de facto complainant on his left shoulder with a wooden stick and kicked on his testicles. Then, the accused 3 to 6 kicked on the de facto complainant. Thus, the accused have committed the above offences. 3. Heard; Sri.Athul Poulose, 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 totally innocent of the accusations levelled against him. A reading of Annexure1 FIR would substantiate that the offences under Sec.308 of the IPC and Sec.92(b) of the Right of Persons with Disabilities Act cannot be attributed against the petitioner. The specific overt acts are alleged against the accused 1 and 2, who inflicted grievous injuries on the de facto complainant. Moreover, the petitioner has been in judicial custody since 21.5.2024, the investigation in the case, so 4 BA No.4328 of 2024 far as it relates to the petitioner, is practically complete and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation in the case is in progress. He also submitted that the accused 1 to 6 had in prosecution of their common intention assaulted the de facto complainant. Therefore, the petitioner has a complicity in the crime. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Nonetheless, he did not dispute the fact that the petitioner does not have criminal antecedents. 6. On an evaluation of the materials on record, it can be seen that the specific overt acts are alleged against the accused 1 and 2 who assaulted the de facto complainant. The second accused also kicked the de facto complainant on his testicles and caused him grievous injuries. The 5 BA No.4328 of 2024 allegation against the petitioner is that he along with accused 3,4 and 6 had kicked the de facto complainant. The fact remains that petitioner has been in judicial custody since 21.5.2024, 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 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 **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. 6 BA No.4328 of 2024 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. 10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, particularly taking into consideration the fact that the specific overt acts are alleged against the accused 1 and 2, that the petitioner has been in judicial custody since 21.5.2024, that the investigation in the case, so far as it relates to the petitioner, is complete, that the petitioner does not have any criminal antecedents 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. 7 BA No.4328 of 2024 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 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; 8 BA No.4328 of 2024 (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. 9 BA No.4328 of 2024 (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/29.5.2024 **C.S.DIAS, JUDGE**