Joby vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 2 and 3 in Crime No.369/2024 of the Ollur Police Station, Thrissur, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 341, 323, 324, 294(b) and 308 r/w Section 34 of the Indian Penal Code( in short, 'IPC'). The petitioners were arrested on 07.05.2024.

The essence of the prosecution case is that: on 04.05.2024, at around 17.30 hours, the 1st accused hurled abuses at the defacto complainant and pushed. Then, the 1st accused hit the defacto complainant with a spade on his head and face. The accused 2 and 3 facilitated the 1st accused to cause injuries to the defacto complainant and his friends. Thus, the accused have committed the above offences.

Heard; Smt.Gayathri Muraleedharan, the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Section 308 of the IPC to deny bail to the petitioners. A reading of Annexure A1 FIR would substantiate that the specific overt act is only alleged against the 1st accused, who allegedly hit the defacto complainant on his head with a spade. In fact, the defacto complainant has not suffered any injuries as alleged by the prosecution. The petitioners have been in judicial custody for the last one month, the investigation in the case is practically complete and recovery has been effected. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She also stated that the 2nd accused has criminal antecedents since he is involved in Crime Nos.1437/2017 and 292/2002 of the Ollur Police Station. If the petitioners are released on bail, there is every likelihood of them tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed.

The learned counsel for the petitioners refuted the submissions of the learned Public Prosecutor by handing over the copy of the judgment in S.C.No.328/2018 of the Court of the First Additional Sessions Judge, Thrissur, which arises out of Crime No.1437/2017, to substantiate the fact that the 2nd accused was acquitted by the First Additional Sessions Judge, Thrissur. She stated that in respect of Crime No.292/2002 there were no further proceedings subsequent to the registration of the crime. Therefore, the 2nd accused does not have any criminal antecedents as alleged by the prosecution. Hence, the application may be allowed.

On an evaluation of the materials on record, it can be gathered that the specific overt act is alleged against the 1st accused, who allegedly attempted to hit the defacto complainant with a spade on his head. On a perusal of the accident register cum wound certificate issued by the Thrichur District Co-operative Hospital Ltd. dated 04.05.2024 it is seen that the defacto complainant has suffered lacerated wounds and tenderness over his left forearm. There is no serious injuries caused to him. However, that is a matter to be investigated and decided at the time of trial. The fact remains that the petitioners have been in judicial custody for the last one month, the investigation in the case is complete and recovery has been effected.

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.

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

On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially considering the fact that there is no specific overt act alleged against the petitioners and that the petitioners have been in judicial custody for the last one month, the investigation in the case is complete and recovery has been effected, I am of the view that the petitioners' further detention is unnecessary. Hence, I am inclined to allow the bail application.

In the result, the application is allowed, by directing the petitioners to be released on bail on them 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 petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer as and when required;

ii. The petitioners 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 shall not commit any offence while they are on bail;

iv. The petitioners shall surrender their passport, 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. 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 petitioners even while the petitioners 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].