Binoy @ Anikuttan 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.802/2023 of the Marayamuttom Police Station, Thiruvananthapuram, registered against the accused ( two in number) for allegedly committing the offences under Sections 341, 324, 326, 307 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 1.11.2023.

The gist of the prosecution case, is that; On 29.9.2023 at about 9 p.m, the accused in furtherance of their common intention had wrongfully restrained the informant to commit his murder and the second accused kicked the informant from his bike and he hit his head on the foot path and the first accused cut on his neck with a knife by proclaiming that he would kill him. When the informant prevented the cut with his left hand, he lost his middle finger on his left hand. The first accused again attempted to cut on the neck of the informant, which he prevented with his left hand and he sustained a deep injury and a fracture on his left thumb. Thereafter, the first accused continuously cut on the left leg of the informant who sustained deep injuries below his left elbow and ankle, and a vein got cut and he suffered a fracture on his left leg. Thus, the accused have committed the above offences.

Heard   Sri.   Sasthamangalam   S.Ajithkumar, learned counsel appearing for the petitioner and Smt. Neema T.V. the learned Senior Public Prosecutor appearing for the respondents.

Learned counsel appearing for the petitioner submitted that the petitioner has been falsely implicated in the crime. In fact, the informant had assaulted the petitioner and S.C.No.1521/2018 is pending consideration before the jurisdictional court. It is a counter blast to the above crime, the present crime has been deliberately registered against the petitioner and the other accused. Notwithstanding the above contentions, the investigation in the case is complete, recovery has been effected and the final report has been laid. The petitioner has been in judicial custody for the last 112 days. The injured was discharged from the hospital as early as on 6.10.2023. Therefore, the petitioner's further detention is not necessary. Hence, the application may be allowed.

The learned Public Prosecutor vehemently opposed the application. She contended that the petitioner has committed a very heinous crime. He inflicted grievous injuries on the informant and the informant lost his middle finger on his left hand. She made available the Accident Register-cum-Wound Certificate as well as the treatment certificate issued by the Government Medical College, Thiruvananthapuram dated 22.11.2023, to substantiate the injuries sustained by the injured. She also contended that the petitioner is a history-sheeter. The petitioner is involved in nine other crimes of similar nature. Moreover, S.C. No. 1521/2018 is posted for trial, wherein the injured is the accused. If the petitioner is released on bail, there is reliable information that there is a threat to his life. Since the petitioner is a history-sheeter and also he has violated the bail conditions in the earlier cases registered against him, the petitioner may not be released on bail. Hence, the application may be dismissed.

The learned counsel for the petitioner refuted the above submissions and contended that out of the alleged nine cases stated to be registered against the petitioner, four cases have ended in acquittal and the other five cases are all prior to the year, 2020. In S.C. No.1521/2018, the petitioner is the de facto complainant. The very fact that there is a threat to the life of the petitioner at the hands of the injured shows the falsity in the present case. Merely because there is a threat to the life of the petitioner, the same cannot be treated as a ground to deny bail to the petitioner. The treatment records would substantiate that the injured was discharged on 6.10.2023. He reiterated the contention that the antecedents of cases prior to the year 2020, also cannot be treated as a ground to deny bail to the petitioner.

The objection of the prosecution is that, the accused 1 and 2, out of their previous animosity with the injured and in furtherance of their common intention, wrongfully restrained the injured and inflicted grievous injuries to him. The injured lost his middle finger of his left hand. He also sustained other injuries, including fractures and had to be hospitalised from 29.9.2023 to 6.10.2023. Since the petitioner is a person with antecedents, he may not be let off on bail. Moreover, there is a threat to his life at the hand of the injured, who is an accused in S.C.No.1521/2018 before the jurisdictional court.

In Sanjay Chandra v. CBI, [2012 1 SCC 40], the2024:KER:11608 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 a 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 a 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.

Subsequently, in State of Kerala v. Raneef, [(2011) 1 SCC 784], the Honourable Supreme Court has again held 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 not reasonable and fair and is not in conformity with the requirements under Article 21 of the Constitution of India.

It is trite that there is a presumption of innocence in favour of an accused until he is convicted. It is also borne in mind that bail is a rule and jail is the exception, which is on the touch stone of Article 21 of the Constitution of India. After 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.

After bestowing my anxious consideration to  the facts, the materials placed on record, the rival submissions made across the Bar, and the law referred to in the aforesaid decisions and taking into account the fact that the petitioner has been in judicial custody for the last 112 days, that the investigation in the case is complete, that the recovery has been effected and the final report has been laid, I am of the definite view that the petitioner’s further detention is unnecessary solely for the reason that the petitioner has antecedents and there is threat to his life at the hands of the injured. 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 conclusion of the trial. 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) The petitioner shall not leave the jurisdictional limits of the Court of Session, Thiruvananthapuram till the conclusion of the trial in the present case.

(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].