Ashal @ Ashalmon.S vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.434/2024 of the Kalamassery Police Station, Ernakulam, registered against him for allegedly committing the offences punishable under Sections 324 and 307 of the Indian Penal Code. The petitioner was arrested on 20.03.2024.

The crux of the prosecution case is that; on 29.2.2024, at around 9 hours, the accused, with an intention to commit murder of his wife (first informant), stabbed her on her neck with a knife and she suffered serious injuries. Thus, the accused has committed the above offences.

Heard; Sri.Lavaraj M.G., the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the offence under Section 307 of the IPC. The Investigating Officer has deliberately incorporated the said offence 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. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated if the petitioner is released on bail, there is every likelihood of him murdering the de facto complainant. Hence, the application may be dismissed.

The allegation against the petitioner is that, on 20.03.2024, he attempted to commit the murder of his wife. The fact remains that the petitioner has been in judicial custody for the last 100 days, the investigation in the case is complete and the recovery has been effected, and further the petitioner does not have 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 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 considering the fact that the petitioner has been in judicial custody for the last 100 days, the investigation in the case is complete and the final report has been laid, and further that the petitioner does not have any criminal antecedents, I am of the firm 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 or threat to the first informant or witnesses 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) The petitioner shall not enter the Taluk, where the first informant is residing until further orders;

(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 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].