Joby vs State Of Kerala
2024 Latest Caselaw 15209 Ker

Kerala High Court

Joby vs State Of Kerala on 5 June, 2024

Author: C.S.Dias

Bench: C.S.Dias

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
     WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
                      BAIL APPL. NO. 4483 OF 2024
        CRIME NO.369/2024 OF Ollur Police Station, Thrissur
PETITIONER/S:

    1       JOBY
            AGED 54 YEARS
            S/O JOSE, MENACHERY VEEDU, ANCHERY PALLAN COLONY DESOM,
            NADATHARA VILLAGE, THRISSUR DISTRICT., PIN - 680751

    2       RAVI
            AGED 51 YEARS
            VAZHAPPILLY VEEDU, ANCHERY PALLAN COLONY DESOM,
            NADATHARA VILLAGE, THRISSUR DISTRICT, PIN - 680751

            BY ADVS.
            GAYATHRI MURALEEDHARAN
            ARATHY P.
            ANJANA S. RAJ



RESPONDENT/S:

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            PIN - 682031

            SR.PP.SMT.SEETHA S.


     THIS   BAIL   APPLICATION    HAVING    COME   UP   FOR   ADMISSION   ON
05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 4483 OF 2024
                              2

                         ORDER

The application is filed under Section 439 of the

Code of Criminal Procedure, 1973, by the accused 2 and

3 in Crime No.369/2024 of the Ollur Police Station,

Thrissur, registered against the accused (three in

number) for allegedly committing the offences

punishable under Sections 341, 323, 324, 294(b) and

308 r/w Section 34 of the Indian Penal Code( in short,

'IPC'). The petitioners were arrested on 07.05.2024.

2. The essence of the prosecution case is that: on

04.05.2024, at around 17.30 hours, the 1st accused

hurled abuses at the defacto complainant and pushed.

Then, the 1st accused hit the defacto complainant with a

spade on his head and face. The accused 2 and 3

facilitated the 1st accused to cause injuries to the defacto

complainant and his friends. Thus, the accused have

committed the above offences.

BAIL APPL. NO. 4483 OF 2024

3. Heard; Smt.Gayathri Muraleedharan, the

learned counsel appearing for the petitioners and

Smt.Seetha S., the learned Public Prosecutor.

4. The learned counsel for the petitioners

submitted that the petitioners are totally innocent of the

accusations leveled against them. They have been falsely

implicated in the crime. The Investigating Officer has

deliberately incorporated Section 308 of the IPC to deny

bail to the petitioners. A reading of Annexure A1 FIR

would substantiate that the specific overt act is only

alleged against the 1st accused, who allegedly hit the

defacto complainant on his head with a spade. In fact,

the defacto complainant has not suffered any injuries as

alleged by the prosecution. 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 application may be allowed. BAIL APPL. NO. 4483 OF 2024

5. The learned Public Prosecutor opposed the

application. She submitted that the investigation in the

case is in progress. She also stated that the 2 nd accused

has criminal antecedents since he is involved in Crime

Nos.1437/2017 and 292/2002 of the Ollur Police

Station. If the petitioners are released on bail, there is

every likelihood of them tampering with the evidence

and intimidating the witnesses. Hence, the application

may be dismissed.

6. The learned counsel for the petitioners refuted

the submissions of the learned Public Prosecutor by

handing over the copy of the judgment in

S.C.No.328/2018 of the Court of the First Additional

Sessions Judge, Thrissur, which arises out of Crime

No.1437/2017, to substantiate the fact that the 2nd

accused was acquitted by the First Additional Sessions

Judge, Thrissur. She stated that in respect of Crime

No.292/2002 there were no further proceedings

subsequent to the registration of the crime. Therefore, BAIL APPL. NO. 4483 OF 2024

the 2nd accused does not have any criminal antecedents

as alleged by the prosecution. Hence, the application

may be allowed.

7. On an evaluation of the materials on record, it

can be gathered that the specific overt act is alleged

against the 1st accused, who allegedly attempted to hit

the defacto complainant with a spade on his head. On a

perusal of the accident register cum wound certificate

issued by the Thrichur District Co-operative Hospital

Ltd. dated 04.05.2024 it is seen that the defacto

complainant has suffered lacerated wounds and

tenderness over his left forearm. There is no serious

injuries caused to him. However, that is a matter to be

investigated and decided at the time of trial. The fact

remains that the petitioners have been in judicial

custody for the last one month, the investigation in the

case is complete and recovery has been effected. BAIL APPL. NO. 4483 OF 2024

8. 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.

9. The principle that bail is the rule and jail is an

exception, which 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.

10. On an anxious consideration of the facts, the

rival submissions made across the Bar, and the

materials placed on record, especially considering the

fact that there is no specific overt act alleged against BAIL APPL. NO. 4483 OF 2024

the petitioners and that the petitioners have been in

judicial custody for the last one month, the investigation

in the case is complete and recovery has been effected, I

am of the view that the petitioners' further detention is

unnecessary. Hence, I am inclined to allow the bail

application.

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) 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 BAIL APPL. NO. 4483 OF 2024

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 passport, if any, before the court below at the time of execution of the bond. If they have no passport, they shall file affidavits 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 BAIL APPL. NO. 4483 OF 2024

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].

sd/-

C.S.DIAS,JUDGE

rkc/05.06.24 BAIL APPL. NO. 4483 OF 2024

APPENDIX OF BAIL APPL. 4483/2024

PETITIONER ANNEXURES

Annexure.A1 THE TRUE COPY OF THE FIS DATED 05.052024

Annexure.A2 THE TRUE COPY OF THE FIR IN CRIME NO:

369 OF 2024 OF OLLUR POLICE STATION DATED 05.05.2024

Annexure.A3 THE TRUE COPY OF THE FIS PERTAINING TO THE INCIDENT ON 04.05.2024

Annexure.A4 THE TRUE COPY OF THE FIR IN CRIME NO:

370 OF 2024 OF OLLUR POLICE STATION DATED 05.05.2024

Annexure.A5 THE TRUE COPY OF THE REMAND REPORT IN CRIME NO: 370 OF 2024 OF OLLUR POLICE STATION DATED 07.05.2024

Annexure.A6 THE TRUE COPY OF THE REMAND REPORT IN CRIME NO: 369 OF 2024 OF OLLUR POLICE STATION DATED 07.05.2024