Vishnu v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 BAIL APPL. NO. 2736 OF 2024 ``` ``` CRIME NO.117/2024 OF Anchalummoodu Police Station, Kollam ``` ## **`PETITIONER/S:`** ``` VISHNU AGED 27 YEARS S/O.VASANTHAN, KAYANIYIL VADEKKATHIL, NEERAVIL, THRIKKADAVOOR, KOLLAM -, PIN - 691601 ``` ``` BY ADVS. K.SIJU S.ABHILASH ANJANA KANNATH ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER ANCHALUMMOODU POLICE STATION, KOLLAM DISTRICT -, PIN - 691601 BY ADVS. ADGP Sri Grashious Kuriakose . Sr PP Sri C.K Suresh ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.2736 of 2024 ## **C.S.DIAS,J** **====================== BA No.2736 of 2024 ----------------------------------Dated this the 8[th] day of April, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.117/2024 of the Anchalummoodu Police Station, Kollam, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 294(b), 323, 324, 447 and 302 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 29.01.2024. 2. The gravamen of the prosecution case is that: on 27.01.2024, at around 01.00 hours, the accused, in furtherance of their common intention with an intention to murder Adarsh - the nephew of the defacto complainant named Sreejith, 3 BA No.2736 of 2024 trespassed into the courtyard of his residence and uttered obscene words. When the defacto complainant questioned the same, the accused beat the defacto complainant on his head with an iron rod. Then, the brother-in-law of the defacto complainant named Gopalakrishna Pillai attempted to intervene in the matter. Then, the accused 3 and 4 attacked him and kicked him down on the ground. Subsequently, the defacto complainant’s brother, named Mohanan Pillai (deceased) also attempted to help Gopalakrishnan get in; then, the second accused stamped him on his chest and he succumbed to fatal injuries. The fifth accused abused the defacto complainant and his relatives in obscene language. Thus, the accused have committed the above offences. 3. Heard; Sri. K. Siju, the learned counsel appearing for the petitioner and Sri. C.K. Suresh, the learned Senior Public Prosecutor for the respondents. 4 BA No.2736 of 2024 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure A1 FIR would substantiate that it was only the second accused who inflicted the fatal injury on the deceased. There is no specific overt act alleged against the petitioner. Therefore, the offence under Section 302 of the IPC, which is the non-bailable offence, will not be attracted. In any given case, the petitioner has been in judicial custody since 29.01.2024 and the investigation in the case, so far as the petitioner is concerned, is practically complete. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. Nonetheless, he conceded to the fact that there is no specific overt act alleged against the petitioner. He submitted that the investigation in the case, so far as the 5 BA No.2736 of 2024 petitioner is concerned, is practically complete and his further detention is not necessary. 6. On an evaluation of the materials placed on record, it is seen that the specific overt act of committing the offence under Section 302 of the IPC is alleged against the second accused. There is no specific overt act alleged against the petitioner. 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 **Dataram Singh v. State of U.P** ., [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is a 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 6 BA No.2736 of 2024 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. 10. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, especially in view of the findings already rendered above, and considering the fact that the petitioner has been in judicial custody since 29.01.2024, that the investigation in the case, so far as the petitioner is concerned, is practically complete, I am of the definite view that the petitioner’s further detention is not necessary. Hence, I am 7 BA No.2736 of 2024 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.1,00,000/- (Rupees one lakh only) each 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 filed. 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 8 BA No.2736 of 2024 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) The petitioner shall not leave the jurisdictional limits of the Court of Session, Kollam, without the previous permission of the Jurisdictional Court. (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered 9 BA No.2736 of 2024 to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (viii) 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/8.4.2024** **C.S.DIAS, JUDGE** 10 BA No.2736 of 2024