Shajikumar vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.426/2024 of the Vilappilssala Police Station, Thiruvananthapuram, which is registered against him for allegedly committing the offences punishable under Sections 452, 324, 326, 307 & 427 read with Section 34 of the Indian Penal Code, 1860. The petitioner was arrested on 17.05.2024.

The gist of the prosecution case is that: on 15.05.2024, at around 19.30 hours, the accused assaulted his wife with an iron crash guard and attempted to murder her. The victim suffered grievous injuries on her right hand, right leg, and right eye. Thus, the accused has committed the above offences.

Heard; Sri.M.H.Asif Ali, the learned counsel appearing for the petitioner and Smt. Seetha S., 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. It is only because the petitioner had questioned the out-of-marriage relationship of his wife with a third party that she has made the present complaint. The petitioner is a person without any criminal antecedents. The petitioner has been in judicial custody for the last 40 days, the investigation in the case is complete, and the recovery has been effected. Therefore, the petitioner’s 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, if the petitioner is released on bail, there is a likelihood of him intimidating the victim and also tampering with evidence. Hence, the application may be dismissed.

The prosecution allegation against the petitioner is that, he attacked his wife/de-facto complainant with a crash guard, and she suffered serious injuries. The fact remains that the petitioner has been in judicial custody for the last 40 days, the investigation in the case is complete, and recovery has been effected. Moreover, the petitioner does not have any criminal antecedents.

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, particularly considering the fact that the petitioner has been in judicial custody for the last 40 days, that the investigation in the case is in progress, and recovery has not been effected, I am of the firm 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 on the first Saturday of every month till the conclusion of the trial in Crime No.426/2024;

(ii) The petitioner shall not directly or indirectly make any inducement or threat to the de-facto complainant or her witnesses 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 not enter the residence where the de-facto complainant is presently residing until the conclusion of the trial in Crime No.426/2024;

(v) 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;

(vi) 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.

(vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(viii) 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].