Lijo James 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 in Crime No.242/2024 of the Vandanmedu Police Station, Idukki, which is registered against him for allegedly committing the offences punishable under Sections 15(4) & 19 of the Kerala Anti-Social Activities (Prevention) Act, 2007. The petitioner was arrested on 19.03.2024.

The essence of the prosecution case is that: the DIG Kochi Zone had passed a restriction order bearing No.KAAPA-2818/2024/ER dated 19.03.2024, against the petitioner, directing him not to enter the territorial jurisdiction of the District Police Chief, Idukki, for a period of six months. Even though the petitioner received a copy of the order on 19.03.2024, he entered the Idukki District on 20.04.2024 and violated the restriction order. Thus, the accused has committed the above offences.

Heard; Sri. Ameer Salim, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. The Investigating Officer has deliberately registered the above case against the petitioner out of his previous animosity towards him. The petitioner has not violated the restriction order as alleged by the Investigating Officer. In any given case, the petitioner has been in judicial custody for the last 66 days, and the investigation in the case is complete. Furthermore, the petitioner undertakes that he would not enter the territorial jurisdiction of Idukki District during the validity of the above-referred order. Therefore, the petitioner is entitled to be released on bail.

The learned Public Prosecutor opposed the application. He submitted that the petitioner is an inveterate offender. In the above circumstances, the DIG Kochi Zone passed the above-referred restriction order against the petitioner. If the petitioner is enlarged on bail, there is every likelihood of him again violating the said restriction order and also committing further offences. Hence, the application is only to be dismissed.

The crux of the prosecution allegation, is that: the petitioner violated the restriction order passed by the DIG Kochi Zone by entering Idukki District within one month after the passing of the restriction order. The fact remains that the petitioner has been in judicial custody for the last 66 days, and the investigation in the case is complete. Furthermore, the petitioner undertakes before this Court that he would not enter the territorial jurisdiction of Idukki District.

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.

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 on 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 petitioner has been in judicial custody for the last 66 days and the investigation in the case is complete, I am of the firm 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 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 not enter the territorial jurisdiction of Idukki District during the validity of the restriction order dated 19.03.2024 passed by the DIG Kochi Zone.

(v) The petitioner shall not commit any offence while he is on bail;

(vi) 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;

(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 filed and entertained before the court below.