Kerala High Court
Jithin vs State Of Kerala on 6 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
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
BAIL APPL. NO. 4543 OF 2024
CRIME NO.385/2024 OF VALAPPAD POLICE STATION, THRISSUR
AGAINST THE ORDER/JUDGMENT DATED 16.05.2024 IN CRMC NO.695 OF
2024 OF ADDITIONAL DISTRICT COURT, THRISSUR
PETITIONER/3RD ACCUSED:
JITHIN
AGED 32 YEARS
SON OF JYOTHIPRAKASH, KAREPARAMBIL HOUSE, VALAPAD
VILLAGE, THRISSUR, PIN - 680567
BY ADVS.
JITHIN BABU A
ARUN SAMUEL
M.R.MOUNEESH
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
SR.PUBLIC PROSECUTOR SMT.SEETHA S.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A. No.4543 of 2024
2
Dated this the 6th day of June 2024
ORDER
The application is filed under Section 439 of the
Code of Criminal Procedure, 1973, by the third accused
in Crime No.385/2024 of the Valappad Police Station,
Thrissur, registered against the accused (5 in number)
for allegedly committing the offences punishable under
Sections 341, 323, 324 and 308 r/w Section 34 of the
Indian Penal Code. The petitioner was arrested on
29.04.2024.
2. The gist of the prosecution case is that; on
27.4.2024, at around 21.30 hours, the accused, in
furtherance of their common intention, had trespassed
into the house of the de facto complainant and the
second accused kicked him on the ground. Thereafter,
the accused 2 to 5 kicked and hit the de facto
complainant and the first accused voluntarily caused hurt
to him by beating him with an iron pipe on the left side of
his head. The de facto complainant suffered injured on
his left ear and left eye. Even though the friends of the
de facto complainant tried to intervene in the matter, the
accused caused hurt to all of them by hitting them with
iron pipes. It is only because the de facto complainant
warded off the attack, he did not lose his life. Thus, the
accused have committed the above offences.
3. Heard; Sri.Jithin Babu A, the learned counsel
appearing for the petitioner and Smt.Seetha S., the
learned Senior Public Prosecutor.
4. The learned counsel appearing for the
petitioner submitted that the petitioner is totally
innocent of the accusations levelled against him. The
specific overt act is only alleged against the first accused
so as to attract the offence under Section 308 of the IPC.
The Investigating Officer has deliberately incorporated
Sections 308 of IPC, to deny bail to the petitioner. In
any given case, the petitioner has been in judicial
custody for the last 38 days, the investigation in the case
is practically complete and recovery has been effected.
Moreover, the Court of Session, Thrissur, has enlarged
the 4th accused on bail as per its order dated 30.5.2024 in
Crl.M.C No.765/2024. The petitioner is at par with the
said accused. Hence, the petitioner may be released on
bail.
5. The learned Public Prosecutor opposed the
application. She submitted that the investigation in the
case is in progress. She also stated that the petitioner is
a person with criminal antecedents, since he is involved
in 9 other crimes. Taking into account this aspect, the
learned Sessions Judge has dismissed the petitioner's
application. If the petitioner is released on bail, there is
every likelihood of him tampering with evidence and
intimidating the witnesses. Hence, the application may
be dismissed.
6. On an evaluation of the materials on record, it can
be gathered that the specific overt act is alleged against
the first accused, who hit the de facto complainant and
his friends with an iron pipe and caused injuries to them.
Prima facie, the only allegation against the petitioner is
that he hit the de facto complainant with his hand.
Whether the offence under Section 308 of the IPC is
attracted against the petitioner is a matter to be
investigated and decided at the time of trial. On going
through the materials on record, it can be seen that the
antecedents alleged against the petitioner are mostly
prior to the year 2014. However, four cases have been
registered against the petitioner in the year 2021. The
fact remains that the petitioner has been in judicial
custody for the last 38 days, the investigation in the case
is practically complete and the 4 th accused has been
enlarged on bail.
7. It is well settled in Hussainara Khatoon
(I) v. Home Secy., State of Bihar [(1980) 1 SCC 81],
that merely because a person has a antecedent, the
same shall not be treated as a ground to deny bail to
that person.
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. 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.
10. 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.
11. After bestowing my anxious consideration to the
facts, the rival submissions made across the Bar, and the
materials placed on record, especially on considering
the fact that the petitioner has been in judicial custody
for the last 38 days, the investigation in the case is
practically complete and recovery has been effected, and
furthermore the 4th accused has been enlarged on bail
by the Court of Session, I am of the definite 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.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 Saturday between 9 a.m.
and 11 a.m till the final report is laid. He 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
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) 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 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].
SD/-
rmm/6/6/2024 C.S.DIAS, JUDGE
