Ashokan vs State Of Kerala

C.S.Dias, J

This is the second application filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.300/2024 of Chathannoor Police Station, Kollam, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 341, 323, 324, 307 and 506 r/w 34 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioner was arrested on 13.3.2024.

The essence of the prosecution case is that: on 12.3.2024, at around 21.30 hours, the accused, in furtherance of their common intention, formed themselves into an unlawful assembly and wrongfully restrained the de-facto complainant and the 1st accused cut him on the back of his head with a knife and when the de facto complainant fell down, the accused Nos.2 and 3 assaulted him. Thus the accused have committed the above offences.

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

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The Investigating Officer has deliberately incorporated Section 307 of the IPC to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody since 13.03.2024, the investigation in the case is complete and the recovery has been effected. Therefore, the petitioner’s further detention is not necessary. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report. The investigation Officer has stated that the investigation is still in progress. The petitioner is the accused in Crime Nos.145/2022 and 904/2022 of the Chathannoor Police Station registered for committing the offences under Section 341 and also under the NDPS Act. It was the 1st petitioner who inflicted the grievous injury on the de facto complainant with a sharp knife out of his previous animosity with the de facto complainant. If the petitioner is released on bail, he would intimidate the witnesses and tamper with the evidence. Hence the application be dismissed.

A reading of the materials on record would show that the accused 1 to 3 in furtherance of their common intention had assaulted the de facto complainant and the 1st accused inflicted grievous injuries on the defacto complainant. In any given case, the petitioner has been in judicial custody for the last 40 days, investigation in the case is complete and recovery has been effected.

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.

8.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 under 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.

On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking note of the fact that the petitioner has been in judicial custody for the last 40 days, investigation in the case is practically 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.1,00,000/- (Rupees one lakh 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].