Shrabon Sardar vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by accused Nos.1 to 4 in Crime No.332 of 2024 of InfoPark Police Station, Ernakulam, registered against them, for allegedly committing the offences punishable under Sections 341, 323, 324 and 308 r/w Section 34 of IPC. The petitioners were arrested on 12.05.2024.

The concise case of the prosecution is that, on 10.04.2024, at 21.00 hours, the accused persons, in furtherance of their common intention, the accused Nos.1 and 2 wrongfully restrained the defacto complainant and hit him on his head with an iron rod. When the defacto complainant fell on the ground, the 2nd accused hit him with a cement brick, and accused Nos.3 and 4 caused hurt to him by fisting him on different parts of his body. Thus, the accused persons have committed the above offences.

Heard; Smt.M.A.Sulfia, the learned counsel appearing for the petitioners and Smt.Neema T.V., the learned Senior Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating officer has deliberately incorporated Section 308 of IPC to deny bail for the petitioners. There is no material to substantiate that the petitioners have committed the above offences. The petitioners have been in judicial custody for nearly the last 40 days, the investigation of the case is complete and recovery has been affected. Moreover, the petitioners are persons without any criminal antecedents. Therefore, the petitioners may be released on bail.

The learned Public Prosecutor seriously opposed the bail application. She submitted that the petitioners are natives of West Bengal. Petitioners do not have roots in the State of Kerala. Therefore, if the petitioners are released on bail, there is every likelihood of them fleeing from justice. Moreover, there are incriminating materials to substantiate the petitioners involvement in the crime and the investigation of the case is not complete. Hence, the application may be dismissed.

The prosecution allegation  against the petitioners is that, they had assaulted the defacto complainant with an iron rod and cement brick and he suffered serious injuries. The factum is that the petitioners have been in judicial custody for the last 40 days, the investigation has progressed and recovery has been affected. Merely because the petitioners are natives of the State of West Bengal, the same cannot be a reason to deny bail to them in view of the law laid down in Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81].

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, particularly taking into consideration the fact that the petitioners have been in judicial custody for the last 40 days, the investigation in the case is practically complete and recovery has been affected, I am of the firm view that the petitioners are entitled to be released on bail. 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) 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 on every alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in crime No.332 of 2024;

(ii) The petitioners shall not directly or indirectly make any inducement or threat to the victim or witnesses or procure 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 they are on bail;

(iv) The petitioners shall furnish their present and permanent addresses, and also their mobile phone numbers to the Investigating Officer and the jurisdictional court.

(v) The petitioners shall not leave the territorial jurisdiction of the Court of Session, Ernakulam, without the previous permission of the jurisdictional court.

(vi) The petitioners 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 an affidavit to the effect before the court below on the date of execution of the bond;

(vii) 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.

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

(ix) 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].