Amarubin @ Amaru vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1, 2, 4 and 5 in Crime No.116/2024 of the Thrithala Police Station, Palakkad, registered against the accused (seven in number), for allegedly committing the offences punishable under Secs. 143, 147, 148, 341, 323, 324, 294(b) and 308 read with Section 149 of the Indian Penal Code. The petitioners 1, 3 and 4 were arrested on 20.2.2024 and the second petitioner’s arrest was recorded on 27.2.2024 .

The essence of the prosecution case is that: at around 18.40 hours on 18.2.2024, the accused in prosecution of their common intention formed an unlawful assembly with deadly weapons and they wrongfully restrained the de facto complainant ( injured) and his friends and beat them with iron sticks and also with hands. The first accused hit on the rear side of the de facto complainant’s head with an iron stick and the second accused hit the de facto complainant on the right side of his head. It is only because the de facto complainant warded off the attack, he did not lose his life. Thus, the accused have committed the above offences.

Heard; Sri.R.Sreehari, learned counsel appearing for the petitioners and Smt. Neema T.V. the learned Senior Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of Annexure-1 FIR would substantiate that the offence under Sec.308 will not be attracted. The said offence has been incorporated only for the purpose of denying bail to the petitioners. In fact, the petitioners have also suffered injuries in the alleged incident. Annexure A3 is a counter case that has been registered against the de facto complainant, wherein the offence under Section 326 of IPC has been incorporated. In any given case, the petitioners have been in judicial custody since 20.2.2024, the investigation in the case is practically complete and recovery has been effected. The accused 6 and 7 have already been enlarged on bail by this Court as per order dated 5.3.2024 in B.A.No.1651/2024. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She contended that the investigation is still in progress. She further submitted that the 4th accused has criminal antecedents. He is involved in six other crimes. If the petitioners are released on bail, there is every likelihood of them committing similar offences and tampering with evidence. Hence, the application may be dismissed.

The predicate offence alleged against the petitioners is under Section 308 of the IPC. On an evaluation of the Accident Register cum Wound Certificates of the three injured dated 19.2.2024 issued by the Taluk Headquarters Hospital, Pattambi, it can be seen that the injured have only sustained contusions on the different parts of their body. It was in the above said circumstances, this Court enlarged the accused 6 and 7 on bail by order in B.A. No.1651/2024.

In Sanjay Chandra v. CBI, [2012 1 SCC 40], the2024:KER:11608 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 a 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 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 be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner.

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.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly after going through the Accident Register cum Wound Certificates of the three injured and the order in B.A. No.1651/2024, I am of the definite view that the petitioners’ further detention is not necessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions.

In the result, the application is allowed, by directing the petitioners to be released on bail on them 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 petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of one month or till the final report is laid, whichever is earlier. They shall also appear before the Investigating Officer as and when required;

(ii) The petitioners 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 petitioners shall not commit any offence while he is on bail;

(iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the  bond.  If  they  have  no  passports,  they  shall  file affidavits 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 petitioners even while the petitioners are 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].