Bibin Babu 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.282/2024 of the Binanipuram Police Station, Ernakulam, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 457 and 380 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 02.05.2024.

The essence of the prosecution case is that; between the period from August 2023 to 16.04.2024, the accused, in furtherance of their common intention, committed theft of 500 kg of iron pipes, 5 AC outdoor units, and other scrap items from the company where the defacto complainant is employed as General Manager. Accordingly, the accused has caused a loss of Rs. 45,000/- to the defacto complainant. Thus, the accused have committed the above offences.

Heard; Sri. Deepak Mohan, the learned counsel appearing for the petitioner 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. He has been falsely implicated in the crime. There is no material to substantiate the petitioner’s involvement in the case. The petitioner is a person without any criminal antecedents. In any given case, the petitioner has been in judicial custody for the last 27 days, the investigation in the case, so far as the petitioner is concerned, is practically complete, and the recovery has been effected. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that other accused have not been apprehended till date. She stated that if the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed. However, she did not dispute the fact that the petitioner does not have any criminal antecedents.

The prosecution allegation against the accused is that, they, in furtherance of their common intention had committed the theft of the belongings of the defacto complainant and caused the company a loss of Rs.45,000/-. The fact remains that the petitioner has been in judicial custody since 02.05.2024, the investigation in the case, so far as the petitioner is concerned, is practically complete, and the recovery has been effected. Moreover, 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 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.

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, especially on considering the fact that the petitioner has been in judicial custody for the last 27 days, that the investigation in the case, so far as the petitioner is concerned, is practically complete, that the recovery has been effected, and the petitioner does not have any criminal antecedents, I am of the definite view that the petitioner’s further detention is not necessary. 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 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.

(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].