Ganu @ Ganesh vs State Of Kerala

Bechu Kurian Thomas, J

This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, 1973.

Petitioners are accused Nos. 1 and 2 in Crime No.50 of 2023 of Chavakkad Police Station alleging offences under Sections 394 r/w Section 34 of the Indian Penal Code, 1860.

The prosecution case is that, on 19.01.2023 accused Nos.1 to 4 invited the defacto complainant for playing cards in the house of the 3rd accused. Thereafter the petitioners forcefully committed theft of Rs.4,40,000/- from the defacto complainant, and in the said process caused hurt to him and thereby committed the offences alleged.

Sri.Rajit, the learned counsel for the petitioners, submitted that the entire prosecution allegations are false and that the incident as alleged had never occurred. It was further submitted that accused Nos.3 and 4, against whom identical allegations have been levelled, were granted anticipatory bail, by this Court by order dated 16.02.2023. However, the first petitioner was arrested on 12.05.2023 and the 2nd petitioner was arrested on 09.05.2023 and both of them have been in custody since then. It was also submitted by the learned counsel for the petitioners that having regard to the nature of allegations, the offence under Section 394 of IPC is not at all attracted and that from the prosecution allegations itself it is evident that the parties were all friends. The learned counsel also submitted that there was a delay in registration of the FIR, which itself brings out the falsity of the prosecution case.

Sri.P.G.Manu, the learned Public Prosecutor, vehemently opposed the grant of bail and submitted that case against accused Nos.1 and 2 stands on a different footing from that of accused Nos.3 and 4 and that grant of anticipatory bail to them ought not persuade this Court to grant bail to the petitioners. It was further submitted that the offences alleged against the petitioners are serious in nature, and therefore, releasing them on bail would send a wrong message to society.

I have considered the rival contentions.

Petitioners are accused Nos.1 and 2. The offences alleged against the petitioners are no doubt serious in nature. Even though the incident is alleged to have occurred on 19.01.2023, the crime was registered only on 23.01.2023, and there was no allegation of any serious injury having been inflicted on the defacto complainant. Further, accused Nos.3 and 4, who are also equally responsible for the offences alleged, were granted anticipatory bail by this Court, which is a significant factor while considering regular bail for the petitioners.

Going by the prosecution case, accused Nos.3 and 4 are also active participants in the crime alleged. It was the 3rd accused, who had invited the defacto complainant for playing cards at his house and accused 3 and 4 had threatened and sent him back, after collecting the money. Therefore, the submission of the learned Public Prosecutor that accused Nos.3 and 4 stand on a different footing than that of accused Nos.1 and 2 cannot prima facie be accepted, at least for the purpose of considering this bail application.

Taking into consideration the period of detention already undergone as well as the completion of custodial interrogation, I am of the view that further detention of the petitioners would amount to punishment before conviction.

Having regard to the circumstances arising in the case, I am satisfied that the petitioners ought to be released on bail on strict conditions:

Accordingly, this bail application is allowed on the following conditions:

(a) Petitioners shall be released on bail on them executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.

(b) Petitioners shall appear before the Investigating Officer as and when required.

(c) Petitioners shall not intimidate or attempt to influence the witnesses; nor shall they attempt to tamper with the evidence.

(d) Petitioners shall not commit any similar offences while on bail.

(e) Petitioners shall not leave India until conclusion of trial.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.