Prince @ Kutti Prince vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the third accused in Crime No.740/2023 of the Anthikkad Police Station, Thrissur, registered against the accused for allegedly committing the offences punishable under Sections 341, 324, 307 and 201 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 4.7.2023.

The gravamen of the prosecution case is that; on 21.6.2023, at around 21 hours, the accused 1 to 6, in furtherance of their common intention, formed themselves into an unlawful assembly and attempted to commit the murder of the de facto complainant by voluntarily causing hurt to him by using a knife and a iron rod and kicking on his body. Thus, the accused have committed the above offences.

Heard; Sri.Sarath Babu, the learned counsel appearing for the petitioner and Smt.Seetha. S. the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate the petitioner’s involvement in the crime. The Investigating Officer has deliberately incorporated Section 307 of IPC, to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody for the last one year, the investigation in the case is complete and the final report has been laid. Even though the prosecution has alleged that the petitioner has criminal antecedents, all the cases are registered prior to the year of 2014. For the last ten years, the petitioner does not have any criminal antecedents. Hence, the petitioner may be released on bail. Moreover, the accused 1 and 2 have been enlarged on bail as per Annexures A4 and A5 orders. The petitioner is entitled to the benefit of a similar order. Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the petitioner is an inveterate offender, since he is involved in 15 other crimes of similar nature. If the petitioner is released on bail, there is every likelihood of him committing similar offences. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the investigation in the case is complete, the final report has been laid and the accused 1 and 2 have been enlarged on bail.

The prosecution allegation against the petitioner is that, he and the other accused had formed an unlawful assembly and attempted to commit the murder of the de facto complainant. The fact remains that the petitioner has been in judicial custody for the last one year, the investigation in the case is complete and the final report has been laid. The accused 1 and 2 have been released on bail as per Annexures A4 and A5 orders. The allegation that the petitioner has antecedents, is not of much relevance because the 15 crimes alleged against the petitioner are all registered prior to the year 2014. For the last ten years, the petitioner does not have any criminal antecedents.

It  is  well  settled  in  Hussainara  Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], that merely because a person has an antecedent, the same shall not be treated as a ground to deny bail to that person.

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.

In State of Kerala v. Raneef, [(2011) 1 SCC 784], the Honourable Supreme Court has declared 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.

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.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking into consideration the fact that the petitioner has been in judicial custody for the last one year, the investigation in the case is complete and the final report has been laid, and further that the other accused have been enlarged on bail, 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 conclusion of the trial in Crime No.740/2023. He shall also appear before the Investigating Officer as and when directed;

(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].