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2023 Supreme(Online)(Ker) 74298
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MOHAMMED NIAS C.P, J
BIJU – Appellant
Versus
STATE OF KERALA – Respondent
BAIL APPL. NO. 8171 OF 2023
The existence of criminal antecedents does not automatically bar the grant of bail, as pre-trial detention cannot be used as a punitive measure, and the right to personal liberty under Article 21 of the Constitution remains paramount.
Headnote:The case involves an application for regular bail under S. 439 of the Code of Criminal Procedure, 1973, arising from allegations of assault and attempt to commit culpable homicide. The petitioner contended that they were innocent and that further detention was unnecessary as the investigation was largely complete. Conversely, the State opposed the bail, citing the petitioner's history as a 'history-sheeter' with multiple criminal antecedents. The court addressed whether the existence of prior criminal antecedents is an absolute bar to granting bail. Relying on the principle that pre-trial detention cannot serve as a punitive measure, the court reasoned that the right to personal liberty under Art. 21 of the Constitution is paramount. It determined that since the investigation concerning the petitioner's custody was complete and stringent conditions could mitigate the risk of recidivism or witness intimidation, the petitioner was eligible for bail. The application for bail was allowed subject to strict conditions, including the execution of a bond, regular reporting to the investigating officer, and travel restrictions.
ORDER
This is an application filed under Section 439 of the Code of Criminal Procedure, 1973, seeking regular bail.
The petitioner is the accused in Crime No. 1120 of 2023 of Chathannoor Police Station, Kollam District, registered for offenses punishable under Sections 323, 324, 308, and 506 of the Indian Penal Code.
The prosecution case, in brief, is that on 05.09.2023 at about 20:30 hours, due to prior enmity, the accused wrongfully restrained the de facto complainant and assaulted him with a dangerous weapon (a stone), causing bodily injuries, and voluntarily attempted to commit culpable homicide not amounting to murder, and also criminally intimidated him. The petitioner was arrested on 06.09.2023 and has been in judicial custody since then.
The learned counsel appearing for the petitioner submits that the petitioner is innocent of all the allegations leveled against him and that he has been falsely implicated in the crime. It is further submitted that the investigation, as far as the petitioner is concerned, is practically over, and his continuous detention is not required for the purpose of the investigation.
The learned Public Prosecutor seriously opposed the application for bail. It is pointed out by the learned Public Prosecutor that the petitioner is a history-sheeter and is involved in several other criminal cases of similar nature, showing strong criminal antecedents. The statement of criminal antecedents filed by the prosecution shows that the petitioner is involved in more than five other crimes. Therefore, if the petitioner is released on bail, there is every likelihood of him committing similar offenses again, and he may also influence or intimidate the witnesses.
I have considered the rival submissions and perused the materials available on record.
It is true that the petitioner has criminal antecedents, and several other cases have been registered against him. However, the petitioner has been in custody since 06.09.2023. The incident occurred on 05.09.2023. The weapons have already been recovered, and the material part of the investigation, as far as the petitioner’s custody is concerned, is over.
The law is well-settled that the existence of criminal antecedents by itself cannot be a ground to refuse bail, if the custody of the accused is not required for any purpose of investigation and when conditions can be imposed to take care of the apprehension of the prosecution. Pre-trial detention cannot be used as a punitive measure. The right to personal liberty enshrined under Article 21 of the Constitution of India is paramount, and bail cannot be denied merely as a matter of punishment before a full-fledged trial.
In the facts and circumstances of the case, and considering the period of detention already undergone by the petitioner, I am of the view that the petitioner can be released on bail by imposing stringent conditions to alleviate the apprehensions raised by the prosecution.
In the result, this application is allowed, and the petitioner is granted bail subject to the following strict conditions:
(i) The petitioner shall be released on bail on 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 jurisdictional court.
(ii) The petitioner shall appear before the Investigating Officer on every Saturday between 10:00 AM and 11:00 AM till the final report is filed.
(iii) The petitioner shall not enter the limits of Chathannoor Police Station for a period of three months, except for the purpose of complying with condition No. (ii) or for attending any court proceedings.
(iv) The petitioner shall not influence or intimidate any witness, nor shall he tamper with the evidence in this case.
(v) The petitioner shall not involve himself in any other offense while on bail.
(vi) The petitioner shall surrender his passport before the jurisdictional court within one week from the date of his release. If he does not possess a passport, an
