Vipin M vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.1230/2023 of the Payyannur Police Station, Kannur, registered against the accused (2 in number) for allegedly committing the offences under Sections 341, 308, and 506 r/w Section 34 of the Indian Penal Code and Section 25(1)(B)(b) of the Arms Act, Section 5 of the Explosive Substance Act. The petitioner was arrested on 18.12.2023.

The crux of the prosecution case, is that; on 24.09.2023, at around 15.00 hours, the accused in furtherance of their common intention and out of their previous animosity towards the de facto complainant, the 1st accused restrained the de facto complainant and threatened to murder him with a sword and steel bombs. The 1st accused swung the sword on the neck of the de facto complainant. Had the de facto complainant not warded off the attack, he would have lost his life. Further, the 2nd accused took the sword and steel bombs from the 1st accused and left the place of occurrence. Thus, the accused have committed the above offences.

Heard Sri. Abhilash J., learned Counsel appearing for the petitioner and Smt. Nima Jacob, the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent in the accusation levelled against him. He has been falsely implicated in the crime. Section 308 and the Explosive Substances Act has been deliberately incorporated to deny bail to the petitioner. Even though the petitioner moved the jurisdictional Magistrate for bail, his application was dismissed by Annexure -A1 order principally on the finding that the petitioner has criminal antecedents. A Division Bench of this Court, as per the order dated 13.03.2024 in WP(Crl.) No. 185/2024, has set aside the order of the detaining authority constituted under the Kerala Anti-Social Activities Prevention Act, 2007 (for short 'KAA(P)A Act') on the ground that the present crime is an isolated one, when compared to the earlier crimes which are of the year 2017. The petitioner is entitled to the benefit of the findings in the judgment. Notwithstanding the above contentions, the petitioner has been in judicial custody since 18.12.2023, the investigation in the case is complete and recovery has been effected. Therefore, the petitioner's further detention is not necessary. Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner is a person with criminal antecedents. Even though the Division Bench of this Court has set aside the detention order, there is every likelihood of the petitioner committing similar offences. The petitioner may also torpedo the trial and intimidate the witnesses. Hence, the application may be dismissed.

The prosecution allegation against the petitioner and the 1st accused is that in furtherance of their common intention, the 1st accused had swung a sword on the neck of the de facto complainant. Had he not evaded the attack, he would have lost his life. The accused also used steel bombs to cause threat to the de facto complainant. The fact remains that the petitioner has been in judicial custody since 18.12.2023.

A reading of Annexure-A1 order passed by the jurisdictional Magistrate shows that the petitioner's application for bail was dismissed on the ground that the petitioner is a person with criminal antecedents. However, the Division Bench of this Court has set aside the detention order principally on the ground that the present crime is an isolated one.

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 a 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.

Subsequently, in State of Kerala v. Raneef, [(2011) 1 SCC 784], the Honourable Supreme Court has again held that under trial prisoner detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, especially on comprehending the findings of this Court in WP(Crl.) No.185/2024, that the petitioner has been judicial custody since 18.12.2023, that the investigation in the case is practically complete and recovery has 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.1,00,000/- (Rupees one lakh 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 conclusion of trial.

(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 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 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;

(v) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Thalassery, without the 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].