Pratheeksha A 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.930/2024 of the Karukachal Police Station, Kottayam, which is registered against the accused (two in number) for allegedly committing the offence punishable under Section 379 r/w Section 34 of the Indian Penal Code. The crime was originally registered as Crime No. 930/2024 by the Thiruvalla Police Station, Pathanamthitta, but was subsequently transferred to the present Police Station. The petitioner was arrested and remanded to judicial custody on 15.06.2024.

The essence of the prosecution case is that; on 15.06.2024, at around 14.45 hours, the accused, in furtherance of their common intention, had committed theft of the rotary wheels of the Rubber Sheet Rolling Machine from the processing units of the defacto complainant and one Shaji. Thus, the accused have committed the above offences.

Heard; Sri.Susanth Shaji, 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 levelled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner’s involvement in the case. The first accused has been enlarged on bail by the Jurisdictional Magistrate. The petitioner has been in judicial custody for the last 40 days, the investigation in the case is practically complete, and recovery has been effected. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. He submitted that there are incriminating materials to substantiate the petitioner's involvement in the case. He also submitted that the petitioner is a person with criminal antecedents since he is involved in two other crimes of the Karukachal Police Station, i.e; Crime Nos.310/2023 and 542/2024. If the petitioner is released on bail, there is a likelihood of him intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed.

The prosecution allegation against the petitioner is that, he, along with the first accused, in furtherance of their common intention, had trespassed into the property of the defacto complainant and Shaji, and committed the theft of the rotary wheels of the Rubber Sheet Rolling Machine installed in the said premises. The fact remains that the petitioner has been in judicial custody for the last 40 days, the investigation in the case is practically complete, and recovery has been effected. Furthermore, the first accused has been enlarged on bail by the Jurisdictional Magistrate.

It is well settled in Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], that merely because a person has an antecedent, the same shall not be treated as a ground to deny bail to that person.

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 taking into consideration the fact that the petitioner has been in judicial custody for the last 40 days, the investigation in the case is practically 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].