Arjun vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita ( ‘the BNSS’ for short) 2023, by the accused 2 to 4 in Crime No.1840/2024 of the Ambalappuzha Police Station, Alappuzha, which is registered against five accused persons for allegedly committing the offences punishable under Sections 189(2), 191(2), 191(3), 190, 118(1), 118(2), 324(5) and 109 r/w Section 190 of the Bharatiya Nyaya Sanhita, 2023. The petitioners were remanded to judicial custody on 05.10.2024.

The essence of the prosecution case is that: on 04.10.2024, at 21:30 hours, the five accused persons, in prosecution of their common intention, had wrongfully restrained a staff of the Vahad bar (injured) and the 1st accused hit the injured on his head with a stone and he suffered grievous injuries. The accused 2 to 5 also hit the injured and damaged the properties of the bar, causing a loss of Rs.2,00,000/- to the defacto complainant. Thus, the accused have committed the above offences.

Heard; Sri.Aravind Ghosh, the learned counsel appearing for the petitioners and Smt.Pushpalatha M K., the learned Senior Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations levelled against them. There is no material to substantiate the petitioners’ culpability in the crime. A reading of the materials on record would reveal that the specific overt act is attributed against the 1st accused, who assaulted the injured with a stone. The only allegation against the petitioners is that they fisted and hit the injured. In any given case, the petitioners have been in judicial custody for the last 41 days, the investigation in the case, so far as the petitioners is concerned, is practically complete, and recovery has been effected. Furthermore, the petitioners do not have any criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is at a preliminary stage. She also stated that if the petitioners are enlarged on bail, there is every likelihood of them tampering with the evidence and intimidating the witness. Nevertheless, she did not dispute the fact that the specific overt act of causing grievous hurt to the injured is attributed against the 1st accused. Hence, the application may be dismissed.

The prosecution allegation is that, the petitioners along with the 1st accused had wrongfully restrained the injured, and he assaulted the injured with a stone.

On a prima facie appreciation of the materials on record, I find that the specific overt act is attributed against the 1st accused. The allegation against the petitioners is that they fisted and hit the injured. The fact remains that the petitioners have been in judicial custody for the last 41 days, the investigation in the case, so far as the petitioners is concerned, is practically complete, and the recovery has been effected.

Recently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From its experience, it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is the rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, the Honourable Supreme Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts recognize the principle that “bail is the rule and jail is an exception”.

On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that the petitioners have been in judicial custody for the last 41 days, the investigation in the case is complete, recovery has been effected, and furthermore, the petitioners do not have any criminal antecedents, I am of the view that the petitioners’ further detention is not necessary. Hence, I am inclined to allow the bail application.

In the result, the application is allowed, by directing the petitioners to be released on bail on them 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 petitioners shall appear before the Investigating Officer on every alternate 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 him 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;

(iv) The petitioners shall surrender their passports, if any, before the jurisdictional court at the time of execution of the bond. If they have no passports, they shall file affidavits to the effect before the jurisdictional court 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 jurisdictional court.

(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 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].