George @ Kochucherukkan vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS'), by the 1st accused in Crime No.1022/2024 of the Alappuzha North Police Station, Alappuzha, which is registered against the accused persons for allegedly committing the offences punishable under Sections 126(2), 296(b), 115(2), 118(1) and 110 r/w Section 3(5) of the Bharatiya Nyaya Sanhita (in short, 'BNS'). The petitioner was arrested and remanded to judicial custody on 21.07.2024.

The concise case of the prosecution is that: the accused, in furtherance of their common intention, on 21.07.2024, at around 04:00 hours, had wrongfully restrained the defacto complainant and uttered obscene words at him. Then the 1st accused assaulted the defacto complainant with an iron pipe and the 2nd accused also assaulted him with another iron pipe and inflicted serious injuries on the defacto complainant. When a friend of the defacto complainant attempted to intervene in the matter, the 2nd accused assaulted him also. Thereafter, the accused 3 and 4 repeatedly kicked the defacto complainant and his friend, and inflicted injuries on them. It is only because the defacto complainant warded off the attack, the defacto complainant did not lose his life. Thus, the accused have committed the above offences.

Heard; Sri.Gijeesh Praksh, the learned counsel appearing for the petitioner and Smt.Pushpalatha M.K., the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. There is no material to substantiate that the petitioner has committed the offence under Section 110 of the BNS. In any given case, the petitioner has been in judicial custody for the last 45 days, the investigation in the case is complete and recovery has been effected. Moreover, the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate the petitioner's involvement in the crime. She made available the accident register cum wound certificate of the defacto complainant and his friend to substantiate the nature of injuries suffered by them. She stated that if the petitioner is enlarged on bail, he may tamper with the evidence and intimidate the witnesses. Hence, the application may be dismissed.

The prosecution allegation is that the accused had wrongfully restrained the defacto complainant and the petitioner assaulted the defacto complainant by hitting him with an iron rod and the 2nd accused assaulted the defacto complainant and his friend by similar means. The fact remains that the petitioner has been in judicial custody for the last 45 days, the investigation in the case is complete, recovery has been effected and the petitioner does not have any criminal antecedents.

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.

Similarly, in Jalaluddin Khan v Union of India, [2024 INSC 604] the Honourable Supreme Court has observed in the following lines:

“21. xxxxx When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. “Bail is the rule and jail is an exception” is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution”.

On an overall consideration of the facts, rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that the petitioner has been in judicial custody for the last 45 days, the investigation in the case is complete, recovery has been effected and the petitioner does not have any criminal antecedents, I am of the firm view that the petitioner's further detention is unnecessary.

Hence, I am inclined to allow the bail application, but subject to stringent conditions.

In  the  result,  the  application  is  allowed,  by directing the petitioner to be released on bail on him 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 petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required;

ii. The petitioner 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 petitioner shall not commit any offence while he is on bail;

iv. The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit 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. Application 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 matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is 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].