Anoop V.P vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), by the first accused in Crime No.584/2023 of Panamaram Police Station, Wayanad, registered against the accused (10 in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 324, 307 read with Section 149 of the Indian Penal Code., 1860. The petitioner was arrested on 25.01.2024.

The prosecution case, in brief, is that: on 16.12.2023, at about 01.00 hours, the accused in prosecution of their common intention formed themselves into an unlawful assembly with armed weapons, like stick and iron pipes, with an intention to kill the de-facto complainant, and the first accused beat the de facto complainant on his head with an iron pipe. Thereafter, the accused 1 to 7 using iron pipes and sticks hit on the head and rear side of the de-facto complainant and he sustained grievous injuries. Thus, the accused have committed the above offences.

Heard; Smt.M.B.Shyni, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Public Prosecutor appearing for the respondent

The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. At any rate, the petitioner has been in judicial custody since 25.01.2024, the investigation in the case is practically complete and recovery has been effected. Even though the petitioner had filed B.A.No.956/2024, by Annexure-3 order, this Court dismissed his application, principally on the ground that there was a specific overt act alleged against the petitioner. Now, since the investigation is complete, the petitioner’s further detention is unnecessary. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She contended that the investigation in the case is not yet complete. She again made available the accident register-cum-wound certificate of the injured to substantiate the nature of injuries sustained by the injured. She contended that, if the petitioner is released on bail, there is every likelihood of him tampering with evidence and intimidating the witnesses. Hence, the application be dismissed.

Admittedly, this is the second application filed by the petitioner under Section 439 of the Code. By Annexure-3 order, this Court dismissed his earlier application mainly for the reason that the investigation in the case, so far as the petitioner was concerned, was not complete and that the recovery had to be effected. Now, the petitioner is in judicial custody for more than a month. It is seen that the petitioner is a person without any criminal antecedents, the recovery has been effected and the investigation in the case is practically complete. Thus, I am of the definite view that the petitioner’s further detention is unnecessary.

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 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.

On an anxious consideration of the facts, the rival submissions made across the Bar, the materials placed on record, and for the reasons already mentioned above, I am inclined to allow the bail application.

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 for a period of one month or till the final report is laid, whichever is earlier. 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 filed and entertained before 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].