Jibin.J.S vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (in short, ‘Code’) by the accused 1 to 4 in Crime No.455/2024 of the Neyyattinkara Police Station, Thiruvananthapuram, which is registered against the accused (six in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 149, 302 and 212 of the Indian Penal Code (in short, 'IPC'). The petitioners were arrested on 28.03.2024.

The concise case of the prosecution is that: on 27.03.2024, at around 19.15 hours, the accused 1 to 5 formed an unlawful assembly and went in a car bearing Reg.No.KL-20-S-0518 and wrongfully restrained a person named Adithyan (deceased) and they jointly attacked him. Then the 1st accused handed over a sword to the 2nd accused, who inflicted the stab injury on the neck of the deceased. The accused 3 to 5 assisted the accused 1 and 2 to commit the above offences. The 6th accused provided his vehicle for the accused 1 to 5 to escape from the scene of occurrence. Thus, the accused have committed the above offences.

Heard; Sri. Suman Chakravarthy, the learned counsel appearing for the petitioners and Sri.C.K.Suresh, the learned Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations leveled against them. They have been falsely implicated in the crime. There is no material to substantiate that the petitioners have committed the offence under Section 302 of the IPC. The petitioners have been languishing in jail for the last more than three months, the investigation in the case is complete, recovery has been effected and the final report has been laid. Therefore, the petitioners may be enlarged on jail.

The learned Public Prosecutor strenuously opposed the application. The Investigating Officer has filed a bail objection report, inter-alia opposing the application. He has stated that in the investigation it has revealed that the accused had previous animosity with the deceased due to certain monetary disputes pertaining to a motor cycle transaction. It is out of this animosity, that the accused had committed the murder of the deceased. There are incriminating materials to substantiate the petitioner's involvement in the crime. The 1st accused is a person with criminal antecedents, since he is involved in Crime No.1466/2023 of the Kanjiramkulam Police Station and Crime No.529/2023 of the Neyyattinkara Police station. It was the 2nd accused who inflicted the fatal injury on the deceased. If the petitioners are released on bail, there is every likelihood of them committing similar offences and also intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed. Nonetheless, he did not dispute the fact that the only allegation against the petitioners 3 and 4/ accused 3 and 4 is that they assisted the accused 1 and 2 to commit the above offences.

The prosecution allegation is that the accused had out of their previous animosity towards the deceased, the 2nd accused stabbed and murdered the deceased with a sword that was given to him by the 1st accused. The accused 3 to 5 assisted the accused 1 and 2 to commit the above act. Indisputably, the 1st accused has two antecedents against him as referred to above. It was the 2nd accused who murdered the deceased due to his previous animosity. The 5th accused has been enlarged on bail by the Court of Session taking into consideration the minor role played by him in the incident. The only allegation against the accused 3 and 4 are that they assisted the accused 1 and 2 to commit the above offences. They are persons without 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, which is 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 over all consideration of the facts, rival submissions made across the Bar and the materials placed on record, particularly considering the fact that it is the 1st accused who carried the sword and handed over it to the 2nd accused and the 1st accused is a person with criminal antecedents and the 2nd accused is the person who inflicted the stab injury, the reasonable apprehension projected by the prosecution that the accused 1 and 2 may intimidate the witnesses and tamper with the evidence, I am not inclined to enlarge the accused 1 and 2 on bail. On the contrary, taking into consideration the fact that the accused 3 and 4 had only assisted the accused 1 and 2 to commit the above offences, the investigation in the case is complete, recovery has been effected and the final report has been laid, I am satisfied that the petitioners 3 and 4/accused 3 and 4 are entitled to be released on bail, but subject to stringent conditions.

In the result:

(1) The application filed by the petitioners 1 and 2/ accused 1 and 2 is dismissed.

(2) The application filed by the petitioners 3 and 4/ accused 3 and 4 is allowed subject to the following conditions:

i. The petitioners 3 and 4/accused 3 and 4 shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till final report is laid. They shall also appear before the Investigating Officer as and when required;

ii. The petitioners 3 and 4/accused 3 and 4 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

iii. The petitioners 3 and 4/accused 3 and 4 shall not commit any offence while they are on bail;

iv. The petitioners 3 and 4/accused 3 and 4 shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passport, they shall file affidavits 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 petitioners 3 and 4/accused 3 and 4 even while they are 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].