Vivek v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 BAIL APPL. NO. 6046 OF 2024 CRIME NO.677/2024 OF VATTIYOORKAVU POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER DATED 11.07.2024 IN Crl.MC NO.1712 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER/ACCUSED:`** ``` VIVEK, AGED 37 YEARS C/O REMYA , PUTHUVAL PUTHEN VEEDU, TC .10/805C,MANNAMMOLA, VATTIYOORKAVU, NOW RESIDING AT ADI BHAVAN, VTRA-51, MELATHUMELE, VATTIYOORKAVU, THIRUVANAMTHAPURAM, PIN - 695013 BY ADVS. SRI.K.K.JAYARAJ NAMBIAR SRI.SIDHARTH J NAMBIAR ``` ## **`RESPONDENT/COUNTER PETITIONER:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Bail Appl. No.6046 of 2024 : 2 : ## **O R D E R** ## **Dated this the 1[st] day of August, 2024** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhitha (for short ‘BNSS’) by the sole accused in Crime No.677 of 2024 Vattiyoorkavu Police Station, Thiruvananthapuram, which is registered against him for allegedly committing offences punishable under Sections 294(b), 324, 326 and 308 of the Indian Penal Code, 1860 (for short ‘IPC’). The petitioner was arrested and remanded to judicial custody on 06.06.2024. 2. The gist of the prosecution case is that, on 05.06.2024, at about 13:30 hours, the accused attempted to murder the defacto complainant by attacking him with a chopper. It is only because the defacto complainant had warded off the attack, he did not lose his life. However, his left ear got severed. Thereafter, the accused again hacked the defacto complainant and inflicted injuries on his left Bail Appl. No.6046 of 2024 : 3 : index finger. Thus, the accused has committed the above offences. 3. Heard; Sri. Jayaraj Nambiar K.K., the learned counsel 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 innocent of the accusations levelled against him. He has been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Sections 326 and 308 of IPC to see that the petitioner is incarcerated. In fact, the alleged incident occurred in the house of the petitioner. The defacto complainant and his friends had inflicted grievous injuries on the petitioner as well as his son, and Annexure A3 FIR has been registered against them. Accordingly, Annexure A3 FIR is registered against the defacto complainant and his friends. However, the defacto complainant was granted an order of Bail Appl. No.6046 of 2024 : 4 : pre-arrest bail. On the contrary, the petitioner was arrested and has been in judicial custody for the last 55 days, the investigation in this case is complete and recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation in this case is in She stated that the progress. petitioner has committed a very serious crime by inflicting grievous injuries on the defacto complainant. She made available the accident register cum the wound certificate dated 05.06.2024 issued by the District Model Hospital, Thiruvananthapuram, to demonstrate the nature of the injuries suffered by the defacto complainant. She stated that the petitioner is a person with criminal antecedents since, he is involved in one another crime. If the petitioner is released on bail, there is a Bail Appl. No.6046 of 2024 : 5 : likelihood of him committing a similar offence and also intimidating the witnesses. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that he attacked the defacto complainant with a chopper and inflicted grievous injuries. The said allegation, prima facie, stands established by the treatment records of the injured. However, these are matters that have to be investigated and ultimately decided at the time of the trial. The fact remains that, the petitioner has been in judicial custody for the last 55 days, 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 Bail Appl. No.6046 of 2024 : 6 : 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. 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. On an anxious consideration of the facts, the rival submissions made across the Bar, and the Bail Appl. No.6046 of 2024 : 7 : materials placed on record, particularly taking into consideration the fact that the petitioner has been in judicial custody for the last 55 days, the investigation in the case is complete 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. 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; Bail Appl. No.6046 of 2024 : 8 : - (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. Bail Appl. No.6046 of 2024 : 9 : (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/- **C.S.DIAS JUDGE** NAB