Ayyappadas 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.444/2024 of Kunnamkulam Police Station, Thrissur, registered against the accused for allegedly committing the offences punishable under Sections 341, 323, 324, 294(b), 506 & 308 read with Section 34 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioner was arrested on 31.03.2024.

The crux of the prosecution case is that: on 30.03.2024, at around 21.30 hours, the accused, in furtherance of their common intention and out of the previous animosity of the first accused with the de-facto complainant, the second accused wrongfully restrained and beat the de-facto complainant with hands. Then, the first accused uttered obscene words at the de-facto complainant, hit him with an elephant goad on his head, and shouted that he would murder him. The de-facto complainant suffered serious injuries. It is only because the de-facto complainant had warded off the attack, he did not lose his life. Thus, the accused have committed the above offences.

Heard; Sri. J. Ramkumar, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior 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 308 of the IPC to deny bail to the petitioner. A reading of Annexure-A1 First Information Report [FIR] would substantiate that the above offence is not attracted to the facts of the case. In any given case, the petitioner has been in judicial custody since 31.03.2024, the investigation in the case is complete, the recovery has been effected, and further, the petitioner has no criminal antecedents. Hence, the petitioner may be released on bail.

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

The prosecution allegation against the petitioner is that he assaulted the de-facto complainant with an elephant goad and caused injuries on his head. The fact remains that the petitioner has been in judicial custody since 31.03.2024, the 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.

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 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 on comprehending the fact that the petitioner has been in judicial custody since 31.03.2024, the investigation in the case is complete, the recovery has been effected, and, further, 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.

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 filing of the final report. 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 Anr. [2020 (1) KHC 663].