Balan vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the accused 2 and 3 in Crime No.879 of 2024 of the Perinthalmanna Police Station, Malappuram which is registered against the accused for allegedly committing the offences punishable under Sections 304 read with Section 34 of the Indian Penal Code, 1860 ((for short ‘IPC’) and Sections 3 and 5 of the Explosive Substances Act. The petitioners were arrested on 11.05.2024.

The prosecution case, in brief, is that: the accused, in furtherance of their common intention and knowing fully well that they don’t have licence to possess explosive substances, on 11.05.2024, at around 12.30 hours, took the explosives to a property to dig a borewell. While using the explosives, an explosion occurred and the 1st accused namely Rajendran (deceased) lost his life. The accused used the explosives knowingly fully well that it would endanger human life. The accused did not have licence to use the explosives. Thus, the accused have committed the above offences.

Heard; Sri.Ahamed Fazil.E.C, the learned counsel for the petitioners and Smt.Neema T.V, the learned Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The petitioners were only the employees of the 1st accused who lost his life in the alleged incident. The petitioners were unaware that the 1st accused had explosives with him. In any given case, the petitioners are in judicial custody since last 47 days, the investigation in the case is complete and recovery has been effected. Therefore, the petitioners further detention is unnecessary. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that investigation is in progress. She also stated that if the petitioners are released on bail, they would tamper with the evidence and intimidate the witnesses. Hence, the application may be dismissed.

The allegation against the petitioners is that, they alongwith the 1st accused had taken explosives to the property and an explosion occurred. The petitioners were fully aware that they did not have the requisite licence to possess the explosive substances and also if the explosive substances were used, it would endanger human life. A reading of the First Information Report would establish that the petitioners were acting on the alleged instructions of the 1st accused. The facts remain that the petitioners have been in judicial custody for the last 47 days, the investigation in the case is complete and recovery is effected. Furthermore, the petitioners do 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. 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 petitioners have been in judicial custody for the last 47 days, the investigation in the case is practically complete and recovery has been effected, and that the petitioners do not have any criminal antecedents, I am of the firm view that the petitioners are entitled to be released on bail. Hence, I am inclined to allow the bail application.

In the result, the application is allowed, by directing the petitioners to be released on bail on them 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 petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. 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 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 passport, they shall file affidavits 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 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].