Jithin vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the third accused in Crime No.385/2024 of the Valappad Police Station, Thrissur, registered against the accused (5 in number) for allegedly committing the offences punishable under Sections 341, 323, 324 and 308 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 29.04.2024.

The gist of the prosecution case is that; on 27.4.2024, at around 21.30 hours, the accused, in furtherance of their common intention, had trespassed into the house of the de facto complainant and the second accused kicked him on the ground. Thereafter, the accused 2 to 5 kicked and hit the de facto complainant and the first accused voluntarily caused hurt to him by beating him with an iron pipe on the left side of his head. The de facto complainant suffered injured on his left ear and left eye. Even though the friends of the de facto complainant tried to intervene in the matter, the accused caused hurt to all of them by hitting them with iron pipes. It is only because the de facto complainant warded off the attack, he did not lose his life. Thus, the accused have committed the above offences.

Heard; Sri.Jithin Babu A, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The specific overt act is only alleged against the first accused so as to attract the offence under Section 308 of the IPC. The Investigating Officer has deliberately incorporated Sections 308 of IPC, to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody for the last 38 days, the investigation in the case is practically complete and recovery has been effected. Moreover, the Court of Session, Thrissur, has enlarged the 4th accused on bail as per its order dated 30.5.2024 in Crl.M.C No.765/2024. The petitioner is at par with the said accused. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She also stated that the petitioner is a person with criminal antecedents, since he is involved in 9 other crimes. Taking into account this aspect, the learned Sessions Judge has dismissed the petitioner’s application. If the petitioner is released on bail, there is every likelihood of him tampering with evidence and intimidating the witnesses. Hence, the application may be dismissed.

On an evaluation of the materials on record, it can be gathered that the specific overt act is alleged against the first accused, who hit the de facto complainant and his friends with an iron pipe and caused injuries to them. Prima facie, the only allegation against the petitioner is that he hit the de facto complainant with his hand. Whether the offence under Section 308 of the IPC is attracted against the petitioner is a matter to be investigated and decided at the time of trial. On going through the materials on record, it can be seen that the antecedents alleged against the petitioner are mostly prior to the year 2014. However, four cases have been registered against the petitioner in the year 2021. The fact remains that the petitioner has been in judicial custody for the last 38 days, the investigation in the case is practically complete and the 4th accused has been enlarged on bail.

It  is  well  settled  in  Hussainara  Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], that merely because a person has a antecedent, the same shall not be treated as a ground to deny bail to that person.

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.

The principle that bail is the rule and jail is an exception is on 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.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioner has been in judicial custody for the last 38 days, the investigation in the case is practically complete and recovery has been effected, and furthermore the 4th accused has been enlarged on bail by the Court of Session, I am of the definite view that the petitioner’s further detention is unnecessary. 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.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) Applications 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].