ORDER

This application is filed under Section 439 of the Cr.P.C.

2. The applicant herein is the accused in S.C. No.600/2018 on the files of the Sessions Court (Marad Cases), Kozhikode. In the aforesaid case he faces indictment for having committed the offences punishable under Sections 302, 342, 447, 449, 354, 392, 325 and 201 of the Indian Penal Code.

3. In essence, the prosecution allegation is that, on 22.05.2017 at about 2.00 a.m, the applicant tied the hands and legs of his deceased wife and smothered her to death. When the minor child woke up, the applicant is alleged to have thrown the child to the ground and strangulated her as well. The applicant was arrested on 25.5.2017. 4. The applicant had earlier approached this Court seeking regular bail and by order dated 4.12.2017 in B.A.No.7968 of 2017, he was granted bail after prolonged incarceration. While granting bail, the fact that the applicant is a disabled person with 50% disability and that he had residual paralysis with a flail at the right lower limb was also considered. One of the conditions imposed required the applicant to refrain from involving in any crimes while on bail.

5. Investigation was completed and final report was laid by the Investigating agency.

6. While so, Crime No.693 of 2019 of the Kozhikode Town Police Station was registered against the applicant for allegedly committing offence under Section 379 of the Indian Penal Code. The investigating officer moved the Court of Session seeking cancellation of bail. By order dated, 2.10.2020, the learned Sessions Judge proceeded to cancel the bail and remand the applicant to judicial custody. He has been in custody since then. Though the order passed by the Court of Session was challenged before this Court, the challenge was repelled in Crl. M.C.

No.5736/2020.

7. Sri. Sasith Panicker, the learned counsel appearing for the applicant, submitted that the applicant has been in custody from 02.10.2020. According to the learned counsel, the applicant is a disabled man and the allegation that he had committed theft of a scooter cannot be believed. According to the learned counsel, the applicant has since been granted bail by the jurisdictional court in the said crime. His innocence can be proved only at the stage of trial and it will be abhorrent to the principles of justice to keep an undertrial in prison on such cooked up and frivolous allegations.

8. Learned Public Prosecutor has very strenuously opposed the prayer. It is submitted that the applicant got himself involved in a very grave crime and while on bail, he has violated the bail conditions and got involved in yet another crime. It is further submitted that if he is released on bail, there is every likelihood that the applicant would commit other offences as well.

9. I have considered the submissions advanced.

10. In G.Narasimhulu v. Public Prosecutor[AIR 1978 SC 429], it was held by the Hon’ble Supreme Court that the requirement for bail is to secure the attendance of the prisoner and it is the duty of the court to admit the accused to bail, where ever practical, unless there are strong grounds for supposing that such person will not appear to take the trial.

In Sanjay Chandra v. CBI [(2012) 1 SCC 40], it was held that it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not. It would also be opposed to all tenets of law to refuse bail to an under trial for the purpose of giving him a taste of imprisonment as a lesson. The fundame