Nithin Thankachan vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.135/2024 of the Idukki Police Station, Idukki, registered against the accused (five in number), for allegedly committing the offences punishable under Sections 323, 324, 326, 341, 506(i) and 308 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 30.4.2024.

The crux of the prosecution case is that; on 4.3.2024, at around 22.00 hours, the accused, in furtherance of their common intention, wrongfully restrained the de facto complainant and the first accused hit him with an iron pipe and caused a fracture below his right knee. When the de facto complainant fell down, the second accused hit him with a stick and caused a fracture to his left palm. The accused 3 and 4 also hit the de facto complainant on different parts of his body. Subsequently, the first accused attempted to beat the de facto complainant’s head, which he warded off. Had he not warded off the attack, he would have lost his life. Thus, the accused have committed the above offences.

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

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 Annexure-1 FIR would substantiate that the offence under Sec.308 will not be attracted. The said offence has been incorporated only to deny bail to the petitioner. By order dated 3.5.2024 in BA No.3497/2024, the first accused has been enlarged on bail. The petitioner is entitled to the benefit of a similar order. The petitioner has been in judicial custody for the last 28 days, the investigation in the case is practically complete and recovery has been effected. Hence, the petitioner may be released on bail.

The learned Public Prosecutor opposed the application. He submitted that investigation in the case is in progress. He also submitted that the petitioner is a person with criminal antecedents since he is involved in two other crimes. If the petitioner is released on bail, there is a likelihood of him interfering with the investigation. Nonetheless, he did not dispute the fact that the first petitioner has been enlarged on bail by this Court as per the order in BA No.3497/2024.

On an evaluation of the materials on record, it can be seen that the specific allegation attributed against the petitioner is that he hit the de facto complainant with a wooden stick and caused a fracture on his left palm. The principal overt act is alleged against the first accused who allegedly hit the de facto complainant with an iron pipe and caused a fracture on his right knee. However, by order dated 3.5.2024 in BA No.3497/2024, this Court has enlarged the first accused on bail. The petitioner has been in judicial custody for the last 28 days, 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 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.

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, particularly taking into consideration the fact that the petitioner has been in judicial custody for the last 28 days, the first accused has been enlarged on bail by this Court, the investigation in the case is complete and recovery has been effected, I am of the definite 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 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) 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 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].