Jobin Thomas vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’, for short) by the sole accused in Crime No.1030/2023 of the Nedumkandam Police Station, Idukki, which is registered against him for allegedly committing the offences punishable under Sections 449, 324, 326, 307, 302, 436 and 427 of the Indian Penal Code. The petitioner was remanded to judicial custody on 9.11.2023.

2.The  prosecution  case,  in  brief,  is  that; on  08.11.2023, at 23:30 hours, the accused had trespassed into the parental house of his wife and he attempted to murder his wife and her father. The accused struck his wife with a billhook and she suffered grievous injuries. The accused also attacked his father-in-law named Thomas (deceased) with a billhook, and he suffered fatal injuries. Even though both the injured were taken to the Nedumkandam Taluk Hospital, the deceased succumbed to the injuries on 9.11.2023. Thus, the accused has committed the above offences.

Heard; Sri.Kurian Antony Mathew, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik,the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate the petitioner’s culpability in the crime. The Investigating Officer has deliberately incorporated Section 302 of IPC to see that the petitioner is arrested and incarcerated. A reading of the allegations in the First Information Report and the final report would reveal that the offence under Section 302 of the IPC will not be attracted to the facts of the case. In any given case, the petitioner has been in judicial custody for the last one year, the investigation in the case is complete and the charge sheet has been filed on 29.01.2024. However, there is no likelihood of the trial in the case commencing in the near future. Therefore, the petitioner’s further detention is an infringement of his right to life. Therefore, the application may be allowed.

The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the petitioner has committed a serious crime by trespassing into his wife’s parental house and attacking his wife and his father-in-law and the deceased succumbed to injuries on the following day. The petitioner is also involved in another crime registered by the Nedumkandam Police Station for committing an offence under Section 324 of the IPC. If the petitioner is enlarged on bail, there is every likelihood of him tampering with the evidence and intimidating the witnesses. Moreover, it would also send a  wrong  message  to  the  society.Therefore,  the application may be dismissed.

The prosecution allegation is that, the petitioner had trespassed into the parental house of his wife and inflicted grievous injuries on his wife and fatal injuries on his father-in-law/deceased. Indisputably, the deceased lost his life on the following day. On a perusal of the postmortem report, it is seen that the deceased lost his life due to the fatal injuries that were inflicted on him. However, that is a matter to be decided after trial.

When the application came up for consideration on 13.11.2024, this Court taking note of the fact that the petitioner has been in judicial custody for the last one year, called for a report from the Court of the Additional Sessions Judge -III, Thodupuzha, to ascertain the status and reasonable time period required to dispose of S.C.No. 164/2024, which arises out of the present crime.

Pursuant to the said order, the Trial Court, by communication dated 20.11.2024, has informed that the case stands posted for framing of charges to 3.12.2024 and there are 51 prosecution witnesses. The FSL report is yet to be received. The Trial Court requires at least 18 months time from the date of receipt of FSL report to dispose of S.C. No.164/2024.

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 a punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct.

Recently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From its experience, it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is the rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, the Honourable Supreme Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts recognize the principle that “bail is the rule and jail is an exception.

Similarly, in Jalaluddin Khan v Union of India [2024 INSC 604] has observed in the following lines:

“21. xxxxx When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. “Bail is the rule and jail is an exception” is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.”

In Prabir Purkayastha v. State (NCT of Delhi)[2024 SCC OnLine SC 934], the Honourable Supreme Court has observed as follows:-

“21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to following observations made by this Court in the case of Roy V.D. v. State of Kerala[(2022) SCC OnLine SC 929]

“7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.”

On an anxious consideration of the facts, the rival submissions made across the Bar, the materials placed on record, and the law referred to in the afore-cited decisions, particularly on considering the fact that the petitioner has been in judicial custody for the last one year, the investigation in the case is complete, the charge-sheet has been filed, and there is no likelihood of the trial in the case commencing in the immediate future, I am of the firm view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the bail applications, 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.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 Trial Court as and when directed;

(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 jurisdictional court at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the said court on the date of execution of the bond;

(v) The petitioner shall not leave the territorial jurisdiction of the jurisdictional court without its previous permission

(vi) The petitioner shall not enter the police station limits of his wife, other than for the purpose of appearing before the Trial Court, till the conclusion of the trial in S.C.No.164/2024.

(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) Applications for deletion/modification of the bail conditions shall be moved and entertained by the jurisdictional court.