Vishnu v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` TUESDAY, THE 28[TH] DAY OF MAY 2024 / 7TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3875 OF 2024 ``` ``` CRIME NO.473/2024 OF EAST KALLADA POLICE STATION, KOLLAM ``` ## `PETITIONER:` ``` VISHNU, AGED 28 YEARS S/O BINDU,RESIDING AT: DEVI KRIPA HOUSE, UPPOODU, EAST KALLADA P.O., KOLLAM, PRESENTLY RESIDING AT: NANDANAM, CANAL ROAD, UPPOODU, PIN – 690540 ``` ``` BY ADVS.R.RAJESH (VARKALA) M.KIRANLAL MANU RAMACHANDRAN T.S.SARATH SAMEER M NAIR SAILAKSHMI MENON JOTHISHA K.A. ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3875/2024_ _-:2:-_ _Dated this the 28[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 sole accused in Crime No.473/2024 of the East Kallada Police Station, Kollam, registered against him for allegedly committing the offences punishable under Sections 341, 323, 324 & 307 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioner was arrested on 21.04.2024. 2. The crux of the prosecution case is that: on 20.04.2024, at around 21 hours, the accused, wrongfully restrained the de-facto complainant from entering his friend’s house. Thereafter, the accused stabbed the de-facto complainant on his abdomen causing him grievous injuries. Thus, the accused has committed the above offences. 3. Heard; Sri. R. Rajesh (Varkala), the learned _B.A.No.3875/2024_ _-:3:-_ counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The Investigating Officer has deliberately incorporated Section 307 of the IPC to deny bail to the petitioner, under the influence of the de-facto complainant. A reading of Annexure-A1 First Information Report [FIR] as well as Annexure-A2 additional report would substantiate the falsity in the crime. In any given case, the petitioners have been in judicial custody for the last 37 days, the investigation in the case is complete, and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the ## _B.A.No.3875/2024_ _-:4:-_ investigation is in progress. She made available the accident register-cum-wound certificate of the injured/de-facto complainant dated 20.04.2024, issued by the Taluk Hospital, Kundara, to substantiate the fact that the de-facto complainant suffered a deep lacerated wound measuring 4x1 cm in his abdomen. She also stated that, if the petitioner is released on bail, there is a likelihood of him tampering with the evidence. Hence, the application may be dismissed. 6. On an analysis of the materials, it can be gathered that the prosecution allegation is that the petitioner had inflicted a grievous injury on the abdomen of the de-facto complainant. The fact remains that the petitioner has been in judicial custody for the last 37 days, the investigation in the case is practically complete, and recovery has been effected. Moreover, I do not find that the petitioner is a person with any criminal antecedents. _B.A.No.3875/2024_ _-:5:-_ 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. 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 _B.A.No.3875/2024_ _-:6:-_ 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, especially on considering the fact that the petitioner has been in judicial custody for the last 37 days, the investigation in the case is complete, recovery has been effected, and the petitioner is a person without any criminal antecedents, I am of the definite view that the petitioner’s further detention is unnecessary. 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.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, _B.A.No.3875/2024_ _-:7:-_ 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 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.3875/2024_ _-: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 of Delhi and another** [2020 (1) KHC 663]. Sd/- ## **C.S.DIAS,JUDGE** DST/28.05.24 //True copy// P.A. To Judge