Rajesh vs State Of Kerala

C.S.Dias, J

The applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1, 2, 3 and 5 in Crime No.268/2024 of the Enath Police Station, Pathanamthitta, registered against the accused for allegedly committing the offences punishable under Sections 143, 144, 147, 294(b), 323, 324, 506 (ii) and 307 r/w Section 149 of the Indian Penal Code. The petitioners were arrested on 22.04.2024.

The gravamen of the prosecution case is that; on 22.04.2024, at around 00.10 hours, the accused, in prosecution of their common intention, and out of their previous animosity towards one Vishnu, with an intention to commit murder of Vishnu, the accused formed into an unlawful assembly, and the first accused verbally abused Vishnu and kicked and slapped him. When the de facto complainant attempted to intervene in the matter, the first accused stabbed Vishnu with a knife and also caused injury to the de facto complainant. Thus, the accused have committed the above offences.

Heard; Sri.John Sebastian Ralph, learned counsel appearing for the petitioners and Sri.C.S.Hrithwik and Smt. Seetha S., the learned Senior Public Prosecutors.

The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The offence under Section 307 of IPC will not be attracted against the petitioners. The 4th accused has already been enlarged on bail by the Court of Session. The petitioners have been in judicial custody for the last 35 days, the investigation in the case is complete and recovery has been effected. Hence, the applications may be allowed.

The learned Public Prosecutors opposed the applications. They submitted that investigation in the case is in progress. They also stated that if the petitioners are released on bail, there is every likelihood of them tampering with evidence. Hence, the applications may be dismissed. Nonetheless, they did not dispute the fact that the 4th accused has been released on bail and also the petitioners do not have any criminal antecedents.

On an evaluation of the materials on record, it can be gathered that the allegation against the petitioners is that, they out of their previous animosity towards the de facto complainant, formed themselves into an unlawful assembly and the first accused allegedly stabbed Vishnu with a knife and also inflicted injures on the de facto complainant. The fact remains that the petitioners have been in judicial custody for the last 35 days, the fourth accused has been enlarged on bail and 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.

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.

On an anxious consideration of 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 35 days, the investigation in the case is complete and the fourth accused has been enlarged on bail, I am of the view that the petitioners are also entitled to the benefit of a similar order. Hence, I am inclined to allow the bail applications, but subject to stringent conditions.

In the result, the applications are 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 on every Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer as and when required;

(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) 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 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].