Robin Reji vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), by the accused Nos.1 to 3 in Crime No.274/2024 of the Thiruvalla Police Station, Pathanamthitta, which is registered against the accused for allegedly committing the offences punishable under Sections 452, 323, 324 & 326 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioners were arrested on 13.05.2024.

The gist of the prosecution case is that: on 19.02.2024, at around 9.30 hours, the accused, in prosecution of their common intention, trespassed into the house of the de-facto complainant and tried to attack a person named ‘Anson’. When the de-facto complainant, his wife, and the wife of Anson, attempted to prevent the attack, the first accused hit on the de-facto complainant’s face with a weapon and he suffered a nasal bone fracture and an injury on his cheek. The accused Nos.2 & 3 attacked and caused hurt to Anson, his wife, brother, and mother. Thus, the accused have committed the above offences.

Heard; Smt. Stiya Sivan, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Senior Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. A reading of the First Information Report [FIR] would show that there is no material to attract Section 326 of the IPC against the petitioners. In fact, pursuant to Annexure-A3 order passed by this Court in an application filed by the petitioners under Section 438 of the Code, the petitioners had surrendered before the Investigating Officer. However, the petitioners were arrested, and their application for bail was rejected by the Court of Session, Pathanamthitta, as per Annexure-A1 order. In any given case, the petitioners have been in judicial custody since 13.05.2024 and the investigation in the case is complete. Even though the petitioners have been in judicial custody for the last 23 days, the recovery has not been effected. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that, it was the first accused, who inflicted the grievous injury on the injured. The weapon is yet to be recovered. If the first petitioner is released on bail, there is a likelihood of him interfering with the investigation. Hence, the application may be dismissed.

On an evaluation of the materials on record, it can be deciphered that it was the first accused who allegedly inflicted the grievous injury on the injured with a weapon. The overt act alleged against the accused Nos.2 & 3 is that they caused hurt to the other persons who were in the house of the de-facto complainant. The materials on record show that the weapon is yet to be recovered.

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 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 on comprehending the nature, gravity, and seriousness of the accusations levelled against the first petitioner/ first accused, that the investigation in the case is in progress, and recovery has not been effected, I am of the firm view that the first petitioner is not entitled to be  released  on  bail.  On  the  contrary,  taking  into account the fact that there is no specific overt act alleged against the accused Nos.2 & 3, so as to attract the offence under Section 326 of the IPC, which is again a matter to be investigated and decided at the time of trial, I hold that accused Nos.2 & 3 are entitled to be released on bail.

In the result,

I) The application filed by the first petitioner/first accused is dismissed.

II) The application filed by the petitioners 2 & 3/accused Nos.2 & 3 are allowed 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 2 & 6 shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is filed. They shall also appear before the Investigating Officer as and when required;

(ii) The petitioners 2 & 3 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 2 & 3 shall not commit any offence while they are on bail;

(iv) The petitioners 2 & 3 shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits 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 2 & 3 even while the petitioners 2 & 3 are on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State(NCT of Delhi) and Anr.[2020 (1) KHC 663].