Krishna Prasad @ Rajesh 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 1 and 2 in Crime No.106/2024 of the Thampanoor Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code. The petitioners were arrested on 9.2.2024.

The gravamen of the prosecution allegation is that; on 7.2.2024, at around 11.30 hours, the accused 1 and 2 along with Sajumon (deceased) entered into a verbal duel, after consuming alcohol and an altercation occurred. In the altercation, the second accused caught hold of the neck of the deceased and hit him against the wall, causing injuries to his neck as well as his head. When the deceased fell down on the ground, the accused stamped and fisted him, which led to his death. Thus, the accused have committed the above offences.

Heard; Sri.Girish Kumar M.S., learned counsel appearing for the petitioner and Sri.C.K.Suresh the learned Special Public Prosecutor.

The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. A reading of Annexure I FIR and Annexure II custody application would show that the offence under Section 302 of the IPC cannot be attributed against the petitioners. In any given case, the petitioners have been in judicial custody since 9.2.2024, which is more than 100 days, the investigation in the case is complete and the final report has been been laid. Furthermore,the petitioners have no criminal antecedents. Therefore, the petitioners further detention is unnecessary. Hence, the application may be allowed.

The learned Special Public Prosecutor opposed the application. He submitted that if the petitioners are released on bail, there is every likelihood of them intimidating the witnesses and tampering with evidence. Hence, the application may be dismissed. However, he did not dispute to the fact that the recovery has been effected and the final report has been laid.

The prosecution allegation against the petitioners is that, they had assaulted the deceased on 7.2.2024, which led to his death. The fact remains that the petitioners have been in judicial custody for the last 105 days, the investigation in the case is complete, recovery has been effected and the final report has already 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.

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.

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.

In Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India.

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 considering the fact that the petitioners have been in judicial custody for the last 105 days, the investigation in the case is complete, recovery has been effected and the final report has been laid, I am of the definite view that the petitioners 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 petitioners to be released on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each 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 as and when directed;

(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 he is 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 an affidavit to the effect before the court below on the date of execution of the bond;

(v) The petitioners shall not leave the territorial jurisdiction of the Court of Session, Thiruvananthapuram without the previous permission of the jurisdictional court;

(vi) The petitioners shall furnish their present and permanent addresses and mobile phone numbers to the Investigating Officer as well as the court below;

(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 court below.

(ix) 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].