Smitha.K.Raj vs State Of Kerala

C.S.Dias, J

This is the second application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the third accused in Crime No. 650/2024 of the Mavelikkara Police Station, Alappuzha, which is registered against the accused persons for allegedly committing the offences punishable under Sections 120 (B) and 302 r/w Section 34 of the Indian Penal Code. The petitioner was arrested and remanded to judicial custody on 19.06.2024.

The essence of the prosecution case is that: the third accused, who is a married lady, had maintained a relationship with one Rajesh (deceased). The deceased used to demand money from the third accused and used to mentally harass her. Due to this animosity, the third accused hatched a conspiracy with the accused 1 and 2 to murder the deceased. Accordingly, on 18.06.2024, between 00:45 hours and 01:50 hours, while the deceased was sleeping in front of the Union Bank, Mavelikkara, in an intoxicated state, the first accused hit him on the rare side of his head with the handle potion of the cycle pump, and the deceased attempted to stand up, the first accused pushed him down and again inflicted injuries on his head, and he succumbed to injuries. Initially, the case was registered under Section 174 of the Cr.P.C. During the course of the investigation and the interrogation of the accused, it was revealed that the accused 1 to 3 had committed the murder of the deceased. Thus, the accused have committed the above offence.

Heard; Sri. T.P. Pradeep., the learned counsel appearing for the petitioner and Smt. Pushpalatha. M.K, the learned SeniorPublic Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. The petitioner is a married lady having two children. Other than for the alleged confession made by the accused 1 and 2, there is no material to substantiate that the petitioner has conspired with the accused 1 and 2 to commit the murder of the deceased. In any given case, the petitioner has been in judicial custody for the last 82 days, the investigation in the case is practically complete, and the recovery has been effected. The petitioner does not have any criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the application. She submitted that it was the petitioner who conspired with the accused 1 and 2, and the accused 1 and 2 murdered the deceased. The investigation in the case is at its fag end. If the petitioner is enlarged on bail, there is every likelihood of her influencing the witnesses and tampering with the evidence. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the petitioner does not have any criminal antecedents.

The prosecution allegation against the petitioner is that, he hatched a conspiracy with accused 1 and 2 and committed the murder the deceased. The fact remains that the petitioner has been in judicial custody for the last 82 days, the petitioner is a lady, the investigation in the case is practically complete, and the 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.

Recently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From its experience, it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is the rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, the Honourable Supreme Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts recognize the principle that “bail is the rule and jail is an exception.

In Prabir Purkayastha v. State (NCT of Delhi)[2024 SCC OnLine SC 934], the Honourable Supreme Court has observed as follows:-

“21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to following observations made by this Court in the case of Roy V.D. v. State of Kerala[(2022) SCC OnLine SC 929 : 2022 INSC 756]:—

“7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.”

Similarly, the Honourable Supreme Court in Javed Gulam Nabi Shaikh  v. State of Maharashtra and Another ((2024) SCC OnLine SC 1693), after surveying the case law on bail has observed as follows:

“19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.”

On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, and the law referred to the aforesaid decisions, particularly on considering the fact that the petitioner has been in judicial custody for the last 82 days, the petitioner is a lady, the investigation in the case is practically complete, the recovery has been effected, and the petitioner does not have any criminal antecedents, 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 her 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 third Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No. 650/2024. She shall also appear before the Investigating Officer as and when required;

(ii) The petitioner 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 petitioner shall not commit any offence while she is on bail;

(iv) The petitioner shall surrender her passport, if any, before the court below at the time of execution of the bond. If she has no passport, she shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Alappuzha, without previous permission of the Jurisdictional Court.

(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].