Sarath Mohanan @ Unni 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 1 to 4 in Crime No.726 of 2024 of the Thrikkodithanam Police Station, Kottayam which is registered against the accused for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324 and 308 read with Section 34 of the Indian Penal Code, 1860 ((for short ‘IPC’).

The essence of the prosecution case is that: on 09.06.2024 at around 21.30 hours, the accused 2 to 4 wrongfully restrained the defacto complainant and the 2nd accused kicked him on the floor. While he was lying on the floor, the 1st accused hit him with a wooden stick on his forehead and right thigh and he suffered injuries. Thus, the accused have committed the above offences.

Heard; Sri.Sanil Jose, the learned counsel for the petitioner and Smt.Neema T.V, the learned Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. There is no material to substantiate that the petitioners have committed the offence under Section 308 of the IPC. Investigating Officer had deliberately incorporated the said offence to deny bail to the petitioners. The petitioners have been in judicial custody for the last 15 days. Investigation in the case is complete and the recovery is effected. Therefore, the petitioners may be released on bail.

The learned Public Prosecutor opposed the application. She submitted that investigation is in progress. She also stated that the 2nd accused is a person with criminal antecedents, since he is involved in another crime of the very same Police Station for allegedly for committing an offence under Section 307 of the IPC. The defacto complainant has suffered serious injuries and sutures had to be administered on him. If the petitioners are released on bail, there is every likelihood of them intimidating the witnesses and committing similar offences. Hence, the application may be dismissed.

The prosecution allegation against the petitioners is that, they wrongfully restrained the defacto complainant and the 2nd accused kicked him to the ground. Then, the 1st accused hit him with a wooden stick. The fact remains that the petitioners have been in judicial custody since 11.06.2024, the investigation 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 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, especially on considering the fact that the petitioners have been in judicial custody since 11.06.2024, the investigation in the case is practically complete and recovery has been effected, I am of the firm view that the petitioners 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 petitioners to be released on bail on them 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 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 him 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 on bail;

(iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passport, 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 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].