BY AD v. T.D.SUSMITH KUMAR

THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 5TH DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 BAIL APPL. NO. 5793 OF 2024 CRIME NO.681/2024 OF Medical College Police Station, Kozhikode AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.3495 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KUNNAMANGALAM PETITIONERS/ACCUSED 1 AND 3: 1 2 MANEESH N.M, AGED 33 YEARS S/O MANI, NARAKASSERI, KODENCHERY P.O, KOZHIKODE., PIN - 673503 SAJEESH M.R, AGED 40 YEARS S/O RAJAN, MAYANKOTT HOUSE,KODENCHERY P.O, KOZHIKODE., PIN - 673503 BY ADVS. T.D.SUSMITH KUMAR T.O.DEEPA JAYKAR.K.S. GAYATHRI C.H. C.SIVADAS B.A. No.5785 & 5793 of 2024 3 RESPONDENTS: 1 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 SUB -INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, KOZHIKDE., PIN – 673005 SR.PUBLIC PROSECUTOR SMT. SEETHA S. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

05.08.2024ALONG WITH B.A.NO.5785/2024 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: B.A. No.5785 & 5793 of 2024 4 Dated this the 5th day of August, 2024 COMMON ORDER The applications are filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( in short, BNSS), by the accused 1 to 3 in Crime No.681/2024 of the Medical College Police Station, Kozhikode, which is registered against the accused for allegedly committing the offences punishable under Sections 341, 323, 326, 294(b), 506 and 392 r/w Section 34 of the Indian Penal Code. B.A No. 5793/2024 is filed by the accused 1 and 3 and B.A. No.5785/2024 is filed by the second accused. The petitioners were arrested and remanded to judicial custody on 23.06.2024. Since the petitioners are the accused in the same crime, the applications are consolidated, jointly heard and are being disposed by this B.A. No.5785 & 5793 of 2024 5 common order.

2. The gist of the prosecution case is that; on

21.06.2024, at around 9.00 hours, the accused, in furtherance of their common intention, had wrongfully restrained the de facto complainant in his room and they caused grievous hurt on him with dangerous weapons. The de facto complainant suffered serious injuries on his spine. Thereafter, the accused abused him in obscene language, threatened to murder him, and took away Rs.35,000/-, his mobile phone and other documents. Thus, the accused have committed the above offences.

3. Heard; Sri.Susmith Kumar D., the learned counsel appearing for the petitioners and Smt. Seetha S. and Smt. Neema T.V., the learned Senior Public Prosecutors.

4. The learned counsel appearing for the petitioners submitted that the petitioners are innocent of B.A. No.5785 & 5793 of 2024 6 the accusations levelled against them. They have been falsely implicated in the crime. The offences under Sections 326 and 392 of IPC have been deliberately incorporated by the Investigating Officer, to see that the petitioners are denied bail. The petitioners do not have any criminal antecedents. In any given case, the petitioners have been in judicial custody for the last 44 days, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioners may be enlarged on bail.

5. The learned Public Prosecutors opposed the application. They submitted that investigation in the case is in progress. They also stated that if the petitioners are released on bail, there is every likelihood of them intimidating the witnesses and tampering with evidence. Moreover, the petitioners have inflicted grievous injuries on the de facto complainant, who has B.A. No.5785 & 5793 of 2024 7 suffered a spine injury. Hence, the applications may be dismissed.

6. The prosecution case is that, the accused had, in furtherance of their common intention, wrongfully restrained the de facto complainant and inflicted grievous injuries on him. The fact remains that the petitioners have been in judicial custody for the last 44 days, the investigation in the case is practically complete and recovery has been effected. Furthermore, I find that the petitioners do not have any criminal antecedents.

7. 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 B.A. No.5785 & 5793 of 2024 8 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 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.

9. In bail applications, generally, it has been laid down from the earliest times that, the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the B.A. No.5785 & 5793 of 2024 9 principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

10. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the petitioners have been in judicial custody for the last 44 days, the investigation in the case is practically complete and the petitioners do not have any criminal antecedents, I am of the firm view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail applications, but subject to stringent conditions. In the result, the applications are 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 B.A. No.5785 & 5793 of 2024 10 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 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; B.A. No.5785 & 5793 of 2024 11 (iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, 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 B.A. No.5785 & 5793 of 2024 12 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]. SD/- C.S.DIAS, JUDGE rmm/5/8/2024