Anandu @ Kichu vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.420/2024 of the Kilimanoor Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offences punishable under Sections 294(b), 341, 324, and 307 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 16.03.2024.

The crux of the prosecution case is that; on 11.03.2024, at around 23.15 hours, the accused, in furtherance of their common intention, uttered obscene words at the de facto complainant and his friends named Anoop and Jithin (injured) and criminally intimidated them. Then, the accused cut the injured with a chopper. When the informant attempted to escape from the scene of occurrence, the accused chased him and also inflicted grievious injuries on him. Thus, the accused have committed the above offences.

Heard; Sri.Latheesh Sebastian, learned counsel appearing for the petitioner and Sri.C.S.Hrithwik., the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The offence under Section 307 of the IPC has been deliberately incorporated to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody for the last 100 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.

The learned Public Prosecutor opposed the application. He submitted that investigation in the case is in progress. He also stated that if the petitioner is released on bail, there is every likelihood of him intimidating the witnesses and tampering with evidence. Hence, the application may be dismissed.

The prosecution allegation against the petitioner is that, he along with the other accused had wrongfully retrained the injured and inflicted grievious injury on the de facto complainant. The fact remains that the petitioner has been in judicial custody for the last 100 days, the investigation in the case is complete and recovery has been effected. A reading of the materials on record does not show that the petitioner has any criminal antecedents.

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 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.

In Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India.

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.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last 100 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 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;

(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].