Akshay vs State Of Kerala

C.S.Dias, J

The application is filed under Sec.439 of the Code of Criminal Procedure by the first accused in Crime No.264 of 2024 of the Nedupuzha Police Station, Thrissur, registered against the accused, for allegedly committing the offences punishable under Sections 341, 324, 326 and 308 read with Sec.34 of the Indian Penal Code. The petitioner was arrested on 27.4.2024.

The concise case of the prosecution is that: on 26.4.2024, at around 21.30 hours, the accused, in furtherance of their common intention, wrongfully restrained the de facto complainant and his friends and the first accused attempted to chop on the neck of the de facto complainant. However, since the de facto complainant warded off the attack, he suffered a grievous injury on his left thumb and the thumb had to be amputated. The other accused caught hold of the friends of the de facto complainant and pushed them. Thus, the accused have committed the above offences.

Heard: Sri.K.R Arun Krishnan, the learned counsel for the petitioner and Sri.C.S Hrithwik, the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate that the offence under Secs.308 and 326 are attracted to the facts of the case. The Investigating Officer has deliberately incorporated the said offences to deny bail to the petitioner. The petitioner has been in judicial custody for the last 60 days, the investigation in the case is complete and final report has been laid. Hence, the petitioner’s further detention is unnecessary. Therefore, the application may be allowed.

The learned Public Prosecutor opposed the application. He submitted that the petitioner has committed a heinous crime by attempting to murder the de facto complainant. In the attack that was made by the petitioner, the de facto complainant’s thumb had to be amputated. He made available the treatment cum wound certificate issued by the Elite Mission Hospital, Thrissur, dated 2.5.2024 to substantiate the fact that the de facto complainant’s thumb had to be amputated. He also stated that the petitioner has one criminal antecedent of the year 2022. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed.

The prosecution allegation against the petitioner is that, he had wrongfully restrained the de facto complainant along with the other accused and he attempted to chop the neck of the de facto complainant. But, since the de facto complainant warded off the attack and he suffered a grievous injury on his left thumb and his thumb had to be amputated. Prima facie, on an appreciation of the materials placed on record, it can be seen that the petitioner is involved in the crime though that is a matter to be decided after the trial. The fact remains that the petitioner has been in judicial custody for the last 60 days, the investigation in the case is practically complete and final report has been laid.

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.

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.

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.

On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into consideration the fact that the petitioner has been in judicial custody for the last 60 days, investigation in the case is complete and final report has been laid, I am of the definite view that the petitioner is entitled to be released on bail. 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 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;

(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.

(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].