C.S.Dias, J
1. The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 5 in Crime No.253/2024 of the Medical College Police Station, Kozhikode, registered against the accused (7 in number) for allegedly committing the offences punishable under Sections 341, 323, 324, 326 and 308 r/w Section 34 of the Indian Penal Code (IPC). The petitioners were arrested on 28.2.2024.
2. The essence of the prosecution allegation is that: on 26.2.2024, at around 20.00 hours, the accused, in prosecution of their common intention, wrongfully restrained the de facto complainant and his brother and the third accused attacked him with an iron rod and caused grievous injuries to him. The other accused also hit the de facto complainant and his brother with bare hands. Thus, the accused have committed the above offences.
3. Heard; Sri.K.M.Jamaludheen, the learned counsel appearing for the petitioners and Smt. Seetha S, the learned Senior Public Prosecutor.
4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The offences under Sections 326 and 308 of IPC will not be attracted against the petitioners. 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 since 28.2.2024, the investigation in the case, so far as the petitioners are concerned, is practically complete and recovery has been effected. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed.
5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. Nonetheless, she conceded to the fact that the specific overt act in the crime is alleged against the third accused, who hit the de facto complainant with an iron rod on his head and caused grievous injuries to him. She also stated that the petitioners have in judicial custody since 28.2.2024 and recovery has been effected.
6. On an analysis of the materials on record, it can be gathered that it was the third accused, who inflicted the grievous injuries on the de facto complainant by hitting him on his head. The specific allegations against the first accused is that, he wrongfully restrained the de facto complainant and the 5th accused had hit the de facto complainant and his brother with bare hands.
7. In Sanjay Chandra v. CBI, [2012 1 SCC 40], the2024:KER:11608 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.
8. 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.
9. Subsequently, in State of Kerala v. Raneef, [(2011) 1 SCC 784], the Honourable Supreme Court has again held that undertrial prisoners 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.
10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on a prima facie consideration of the fact that there is no specific overt act alleged against the petitioners so as to attract the offence under Sections 326 and 308 of the IPC, and that the petitioners have been in judicial custody since 28.02.2024, the investigation in the case is practically complete and recovery has been effected, I am of the view that the petitioners’ further detention is not necessary. 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) 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 for a period of one month or till the final report is laid, whichever is earlier. 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 Police Officer or tamper manner, whatsoever; facts to the court or to any with the evidence in any
(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 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].
