Jayesh. M. M vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure by the sole accused in Crime No.1356/2023 of the Alakode Police Station, Kannur, which is registered against him for allegedly committing an offence punishable under Section 302 of the Indian Penal Code. The petitioner was arrested and remanded to judicial custody on 14.11.2023.

The gravamen of the prosecution case is that: on 13.11.2023, at around 22.15 hours, the accused, out of his grudge towards his friend named Joshi (deceased), who was allegedly having an out of the marriage relationship with the accused's estranged wife, stabbed the deceased with a knife on his chest and he suffered fatal injuries and lost his life. Thus, the accused has committed the murder of the deceased.

Heard; Sri.V.T.Madhavanunni, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. There is no material to substantiate the petitioner's involvement in the case. The Investigating Officer has deliberately implicated the petitioner in the crime out of his animosity towards the petitioner. In any given case, the petitioner has been in judicial custody since 14.11.2023, the investigation in the case is complete and final report has been laid on 09.02.2024. The petitioner is a person without any criminal antecedents. His estranged wife has falsely lodged a complaint against him and Crime No.1047/2023 has been registered for allegedly committing the offence punishable under Section 498A of the IPC. In fact, the petitioner's estranged wife was having an out of the marriage relationship with the deceased. The two cases arise out of such relationship. The petitioner is totally innocent. The petitioner's further detention is unnecessary. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, opposing the application. It is contended that, if the petitioner is released on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed.

The prosecution allegation against the petitioner is that on 13.11.2023, out of the petitioner's grudge towards the deceased, he stabbed the deceased on his chest, and he lost his life. The materials on record reveal that the marital relationship between the petitioner and his wife is strained. His wife has lodged a complaint before the same Police Station and Crime No.1047/2023 is registered against the petitioner for allegedly committing the predicate offence under Section 498A of the Indian Penal Code. The prosecution alleges that it was out of the petitioner's grudge towards the deceased, since he was having an out of marriage relationship with the petitioner's wife, that he has committed the above offence. The petitioner does not have any other criminal antecedents. Prima facie, on going through the materials on record, I find that the petitioner has committed the offence out of his hatred towards the deceased. However, that is a matter to be finally decided after trial.

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.

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.

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 unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India.

The principle that bail is the rule and jail 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.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, and on considering the fact that the petitioner has been in judicial custody for the last seven months, the investigation in the case is complete, recovery has been effected, and final report has been laid on 09.02.2024 and that the petitioner does not have any  criminal  antecedents  other  than  for  the  present  two crimes which arise out of his strained relationship with his wife, I am of the definite view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the application, but subject to stringent conditions.

In the result, the application is allowed, by directing the petitioner to be released on bail on them 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 alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No.1356/2023. 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 furnish his permanent and present address and mobile number to the Investigating Officer as well as the court below.

(vi) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Thalassery without the previous permission of the jurisdictional court.

(vii) 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.

(viii) Application for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(ix) 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].