Deva Harshan vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS'), by the 5th accused in Crime No.565/2024 of the Kodakara Police Station, Thrissur, which is registered against the accused for allegedly committing the offences punishable under Sections 143, 147, 148, 323, 324, 294(b), 506 and 307 r/w Section 34 of the Indian Penal Code (in short, 'IPC'). The petitioner was arrested and remanded to judicial custody on 01.07.2024.

The concise case of the prosecution is that: on 30.06.2024, at around 19:00 hours, the accused, in furtherance of their common intention, had formed themselves into an unlawful assembly, and the 1st accused inflicted a cut injury on the defacto complainant with a sword, the 2nd accused inflicted an injury on his head with a chopper and the 3rd accused hit him on his left eye using a knuckle duster, and the other accused assisted the accused 1 to 3 to commit the above offences. The other accused also fisted the defacto complainant with their hands. Thus, the accused have committed the above offences.

Heard; Sri.Nireesh Mathew, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the offence under Section 307 of the IPC. A reading of Annexure-1 First Information Report would substantiate that the specific overt act is alleged against the accused 1 to 3, who have inflicted grievous injuries on the defacto complainant. The allegation against the petitioner is that he assisted the accused 1 to 3 to commit the above offences. The petitioner has been in judicial custody for the last 30 days, the investigation in the case, so far as the petitioner is concerned, is practically complete and recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner along with the other accused had brutally assaulted the defacto complainant. If the petitioner is released on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Nonetheless, she did not dispute the fact that the overt act alleged against the petitioner is that he assisted the accused 1 to 3 in committing the above offences. The 1st accused is a person with 46 criminal antecedents. Hence, the application may be dismissed.

The prosecution case against the petitioner is that he along with the other accused assisted the accused 1 to 3 to inflict grievous injuries on the defacto complainant. The fact remains that the petitioner has been in judicial custody for the last 30 days, the investigation in the case, so far as the petitioner is concerned, is practically complete and recovery has been effected. I also find that 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 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.

The principle that bail is the rule and jail is an exception, which is 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 overall consideration of the facts, rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that the petitioner has been in judicial custody for the last 30 days, the investigation in the case is complete, recovery has been effected and that the petitioner does not have any criminal antecedents, I hold that the petitioner is 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 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. Application 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].