Kuttappan vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.88/2023 of the Ayiroor Police Station, Thiruvananthapuram, which is registered against the accused  (7  in  number),  for  allegedly  committing  the offences punishable under Sections 143, 147, 148, 294(b), 447, 354, 354B, 323, 324 and 308 r/w Section 149 of the Indian  Penal  Code. The  petitioner  was  arrested  on 23.05.2024 and remanded to judicial custody on 24.05.2024.

The gist of the prosecution case is that; the accused, in prosecution of their common intention, formed themselves into an unlawful assembly on 21.01.2023, at around 12.30 hours, and the first accused uttered obscene words and pulled down the sister of the de facto complainant, the accused 2 and 3 restrained the de facto complainant and the fourth accused hit him with an iron rod on his head and caused serious injuries to him. The accused 5 to 7 beat the de fact complainant with their hands and caused injuries to him. Thus, the accused have committed the above offences.

Heard; Sri.S.M.Althaf, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor appearing for the respondent.

The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of the First Information Report would substantiate that the offence under Section 308 will not be attracted. The said offence has been deliberately incorporated to deny bail to the petitioner. In fact, the petitioner was injured in the very same incident and Annexure A2 FIR has been registered at his instance against the de facto complainant and his friends. A reading of the FIR would show that the specific overt act is alleged against the fourth accused, who hit the de facto complainant with an iron rod. The only allegation against the petitioner is that he uttered obscene words and caught hold of the sister of the de facto complainant. The petitioner has been in judicial custody for the last 90 days, investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner may be enlarged on bail.

The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is released on bail, there is a likelihood of him committing a similar offence and also intimidating the witnesses. Nonetheless, she did not dispute the fact that the specific overt act of causing a serious injury on the de facto complainant is attributed against the fourth accused.

On an evaluation of the materials on record, it can be seen that the alleged incident occurred as early as on 21.01.2023. However, the petitioner is seen arrested on 23.05.2024. A reading of the FIR would reveal that the specific overt act of causing injury on the de facto complainant is attributed against the fourth accused, who hit him on his head with an iron rod. The overt act alleged against the petitioner is that he uttered obscene words and pulled on the dress of the sister of the de facto complainant. The fact remains that the petitioner has been in judicial custody for the last 90 days, Annexure A2 FIR is registered against the de facto complainant and his friends, the investigation in the case is practically 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.

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 the touch stone of Article 21 of the Constitution of India. 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, particularly considering the fact that the specific overt act to attract the offence under Section 308 is alleged against the fourth accused, the petitioner has been in judicial custody for the last 90 days, investigation in the case, in so far as the petitioner is concerned, is practically complete and recovery has been effected, I am of the 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 them 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 filed and entertained before 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].