Joseph @ Joy vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS'), by the sole accused in Crime No.520/2024 of the Puthencruz Police Station, Ernakulam, which is registered against him for allegedly committing the offence punishable under Section 302 of the Indian Penal Code (in short, 'IPC'). The petitioner was arrested and remanded to judicial custody on 20.05.2024.

The prosecution case, in brief, is that: on 19.05.2024, at around 17:30 hours, the accused, with an intention to murder his wife, had assaulted her with a hammer and sickle, and she suffered fatal injuries. The deceased succumbed to the injuries on the very same day. Thus, the accused committed the above offence.

Heard; Sri.Unnikrishnan T.A., the learned counsel appearing for the petitioner and Sri.C.K.Suresh, the learned Special Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate that the petitioner has committed the above offence. The Investigating Officer has deliberately incorporated Section 302 of the IPC to see that the petitioner is incarcerated. The petitioner is a 76 year old man without any criminal antecedents. In any given case, the petitioner has been in judicial custody for the last 115 days, the investigation in the case is complete, recovery has been effected and the final report has been laid. Hence, the application may be allowed.

The learned Public Prosecutor opposed the bail application. He submitted that if the petitioner is enlarged on bail, there is every likelihood of him influencing the witnesses because all of them are his relatives, and also tampering with the evidence . Hence, the application may be dismissed. Nonetheless, he did not dispute the fact that the investigation in the case is complete and the final report has been laid on 14.08.2024.

The prosecution case is that the petitioner had assaulted his wife and inflicted fatal injuries on her, and she lost her life on the very same day. The fact remains that the petitioner has been in judicial custody for the last 115 days, the investigation in the case is complete and the final report has been laid.

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.

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, the  Honourable  Supreme  Court  in Javed Gulam Nabi Shaikh v. State of Maharashtra and Another ((2024) SCC OnLine SC 1693), after surveying the case law on bail has observed as follows:

“19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.”

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 : 2022 INSC 756]:— “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 overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on considering the fact that the petitioner has been in judicial custody for the last 115 days, the investigation in the case is complete, the final report has been laid and the petitioner does not have any criminal antecedents, I am of the 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 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 third Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No.520/2024. 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 not leave the territorial jurisdiction of the Court of Session, Ernakulam, without previous permission of the Jurisdictional Court.

vi. 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.

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

viii. 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].