O R D E R

Dated this the 8 th day of August , 202 4 The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS', for short), by the accused 1 to 4 in Crime No.495/2024 of the Pothanikadu Police Station, Ernakulam, which is registered against the four accused persons, for allegedly committing the offences punishable under Sections 109(1), 118(1), 126(2) and 296(b) r/w Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 ('BNS', for short). The third accused was arrested on 21.07.2024 and the accused 1, 2 and 4 had surrendered on 22.07.2024.

2. The essence of the prosecution case is that;

on 19.07.2024, at around 21:30 hrs., the accused in furtherance of their common intention to murder the de facto complainant, the first accused had uttered obscene words at the de facto complainant and the second accused hit him with an iron block on his head and cheek and when he fell down, the first accused kicked him and the second accused again hit him with an iron block on his head and he suffered grievous injuries. When the de facto complainant's friend attempted to rescue him, the accused 3 and 4 wrongfully restrained and assaulted him. Thus, the accused have committed the above offences.

3. Heard; Sri.Nireesh Mathew, the learned counsel appearing for the petitioners and Smt.Pushpalatha, the learned Senior Public Prosecutor.

4. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating Officer has deliberately incorporated Section 109(1) of the BNS to see that the petitioners are arrested and incarcerated. There is no material to substantiate that the petitioners have committed the offence under Section 109(1) of the BNS. The petitioners have been in judicial custody for the last more than 15 days, the investigation in the case is practically complete and recovery has been effected. Furthermore, the petitioners do not have any criminal antecedents. Hence, the application may be allowed.

5. The learned Public Prosecutor seriously opposed the application. She submitted that there is a specific overt act alleged against the second accused, who assaulted the de facto complainant with an iron block, and he suffered grievous injuries on his head. She made available the accident register-cum-wound certificate dated 25.07.2024 of the de facto complainant issued by the Mar Baselios Medical Mission Hospital, Kothamangalam to substantiate the serious nature of injuries suffered by the de facto complainant. She stated that the investigation is in progress. If the petitioners are released on bail, there is every likelihood of them intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed.

6. On an evaluation of the materials placed on record, it can be deciphered that it was the second accused who hit the de facto complainant with an iron block on his face and head, and he suffered serious injuries. The said fact prima facie stands corroborated by the accident register-cum-wound certificate referred to above. Whereas, the allegation against the first accused is that, he uttered obscene words at the de facto complainant and kicked him when he fell on the ground, and the accused 3 and 4 had assaulted the friend of the de facto complainant. Therefore, the allegation of committing the offence under Section 109(1) of the BNS stands attributed against the second accused, though that is a matter to be investigated and ultimately decided at the time of trial.

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 former conduct.

8. In Dataram Singh v. State of U.P. [(2018