Vijesh@Unni vs State Of Kerala

C.S.Dias, J

The applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 to 3 in Crime No.281/2024 of the Anchuthengu Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offences punishable under Sections 143, 147, 148, 323, 324, 326, 452 and 307 r/w Section 149 of the Indian Penal Code. The petitioners were arrested on 5.5.2024. B.A No.4065/2024 is filed by the first accused and B.A. No.4050/2024 is filed by the accused 2 and 3. As the applications arise out of the same crime, they were consolidated, jointly heard and disposed of by this common order.

The essence of the prosecution case is that; on 4.5.2024, at around 1.30 hours, the accused, in prosecution of their common intention, formed themselves into an unlawful assembly and criminally trespassed into the de facto complainant’s relative's house. Then, the second accused hit a person named Vichu, the relative of the de facto complainant, on his rear side and left hand and inflicted injuries on him. At the same time, the first accused attempted to cut on the neck of the de facto complainant with a chopper, but since he warded off the attack, he suffered an jury on his hand. The first accused also cut the son of the de facto complainant with a machete on his right hand and left palm. The accused 1 to 5 chased the injured from the house and when one of the injured fell down on the road, the second accused hit him on his right hand with a machete and again caused injury to him. Thus, the accused have committed the above offences.

Heard; Sri.P.Anoop, the learned counsel appearing for the petitioners Sri.C.S. Hrithwik and Smt. Neema T.V., the learned Senior Public Prosecutors.

The learned counsel appearing 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 are no incriminating materials to substantiate that the petitioner have committed the offences under Sections 326 and 307 of IPC. The Investigating Officer has deliberately incorporated the said offences to deny bail to the petitioners. In any given case, the petitioners have been in judicial custody for the last one month, the investigation in the case is practically complete and recovery has been effected. Hence, the petitioners may be released on bail.

The   learned   Public  Prosecutors   seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, opposing the application. The Investigating Officer has contended that there are specific overt acts alleged against the petitioners. In fact, the first accused is a history sheeter, since he is involved in 10 crimes of the very same police station and 2 crimes of the Kadakavoor Police Station, for committing similar offences under the IPC. If the first petitioner is released on bail, he would be a menace to the society. Likewise, there is a specific overt act alleged against the second accused also, because he used a machete and inflicted injuries on the injured. He made available the accident register cum wound certificate of the injured to establish the nature of injuries suffered by the injured. He submitted that the applications may be dismissed.

On an evaluation of the materials on record, it can be gathered that the specific overt act is alleged against the accused 1 and 2, of which the first accused inflicted cut injury on the injured with a machete and the injured suffered injuries as reflected from the Accident Register cum wound certificate of the Taluk Head Quarters Hospital, Chirayinkeezhu dated 4.5.2024, which actually corresponds to the nature of accusations levelled against the first accused. However, that is a matter to be investigated and decided at the time of trial. It is also on record that the first accused is an accused in 12 other crimes spanning from 2015 to 2021 of the Anchuthengu Police Station as well as Kadakavoor Police Station.

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, seriousness and the gravity of the accusations levelled against the first accused, and that he is a person with criminal antecedents, and further that specific overt acts are alleged against him, I am of the view that the first accused is not entitled to be released on bail. However, considering the fact that the accused 2 and 3 have been in judicial custody for the last one month, and they have no criminal antecedents and further that there are no specific overt acts alleged against them so as to attract the offence under Section 307 of the IPC, I am of the view that the accused 2 and 3 can be enlarged on bail.

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.

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, and the findings already rendered above, I am of the view that the application filed by the first accused is to be dismissed and the application filed by the accused 2 and 3 is to be allowed.

In the result;

(a) B.A No.4065/2024 filed by the first accused is dismissed.

(b) B.A No.4050/2024 filed by the accused 2 and 3 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 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 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 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 an affidavit 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].