Arunjith vs State Of Kerala

C.S.Dias, J

The applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 4 and 5 in Crime No.117/2024 of the Anchalmmoodu Police Station, Kollam, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 294(b), 323, 324, 447 and 302 r/w Section 34 of the Indian Penal Code. The petitioners were arrested on 29.01.2024.

The gravamen of the prosecution case is that: on 27.01.2024, at around 01.00 hours, the accused, in furtherance of their common intention with an intention to murder Adarsh - the nephew of the defacto complainant named Sreejith, trespassed into the courtyard of his residence and uttered obscene words. When the defacto complainant questioned the same, the accused beat the defacto complainant on his head with an iron rod. Then, the brother-in-law of the defacto complainant named Gopalakrishna Pillai attempted to intervene in the matter. Then, the accused 3 and 4 attacked him and kicked him down on the ground. Subsequently, the defacto complainant’s brother, named Mohanan Pillai (deceased) also attempted to help Gopalakrishnan get in; then, the second accused stamped him on his chest and he succumbed to fatal injuries. The fifth accused abused the defacto complainant and his relatives in obscene language. Thus, the accused have committed the above offences.

Heard; Sri. K. Siju, the learned counsel appearing for the petitioner in B.A. No.1899/2024, Sri.K.K. Dheerendrakrishnan, the learned counser for the petitioner in B.A.No.1953/2024 and sri. C.K. Suresh, the learned Senior Public Prosecutor for the respondents.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of Annexure A1 FIR would substantiate that it was only the second accused who inflicted the fatal injury on the deceased. The specific overt act alleged against the fourth accused is that he attacked Gopalakrishna Pillai and kicked him to the ground, and the fifth accused had uttered obscene words at the defacto complainant and his relatives. Therefore, the offence under Section 302 of the IPC, which is the non-bailable offence, will not be attracted. In any given case, the petitioners have been in judicial custody since 29.01.2024, which is 58 days, and the investigation in the case, so far as the petitioners are concerned, is practically complete. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. Nonetheless, she conceded to the fact that the specific overt acts alleged against the petitioners are as stated by the learned counsel for the petitioners. She conceded to the fact that the investigation in the case, so far as the petitioners are concerned, is practically complete and their further detention is not necessary.

On an evaluation of the materials placed on record, it is seen that the specific overt act of committing the offence under Section 302 of the IPC is alleged against the second accused. The allegation against the fourth accused is that he kicked down Gopalakrishna Pillai, and the fifth accused abused the defacto complainant and his relatives in obscene language.

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 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 materials placed on record, the rival submissions made across the Bar, especially in view of the findings already rendered above, and considering the fact that the petitioners have been in judicial custody since 29.01.2024, that the investigation in the case, so far as the petitioners are concerned, is practically complete, 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.1,00,000/- (Rupees one lakh only) each 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 Tuesday and Saturday between 9 a.m. and 11 a.m till the final report is filed. 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 him 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 they are 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 an affidavit to the effect before the court below on the date of execution of the bond;

(v) The petitioners shall not leave the jurisdictional limits of the Court of Session, Kollam, without previous permission of the Jurisdictional Court.

(vi) 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.

(vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(viii) 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].