Gokul Shaji 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 9th accused in Crime No.565/2024 of the Kodakara Police Station, Thrissur, which is registered against the accused for allegedly committing the offences punishable under Sections 143, 147, 148, 323, 324, 294(b), 506 and 307 r/w Section 34 of the Indian Penal Code (in short, 'IPC'). The petitioner was arrested and remanded to judicial custody on 16.08.2024.

The concise case of the prosecution is that: on 30.06.2024, at around 19:00 hours, the accused, in furtherance of their common intention, had formed themselves into an unlawful assembly, and the 1st accused inflicted a cut injury on the defacto complainant with a sword, the 2nd accused inflicted an injury on his head with a chopper and the 3rd accused hit him on his left eye using a knuckle duster, and the other accused assisted the accused 1 to 3 to commit the above offences. The other accused also fisted the defacto complainant with their hands. Thus, the accused have committed the above offences.

Heard; Sri. Nireesh Mathew, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik, the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the offence under Section 307 of the IPC. A reading of Annexure-1 First Information Report would substantiate that the specific overt act is alleged against the accused 1 to 3, who have inflicted grievous injuries on the defacto complainant. The allegation against the petitioner is that he assisted the accused 1 to 3 to commit the above offences. The petitioner has been in judicial custody since 16.08.2024, the investigation in the case, so far as the petitioner is concerned, is practically complete and recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the application. He submitted that the petitioner along with the other accused had brutally assaulted the defacto complainant. If the petitioner is released on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Nonetheless, he did not dispute the fact that the overt act alleged against the petitioner is that he assisted the accused 1 to 3 in committing the above offences. Hence, the application may be dismissed.

The prosecution case against the petitioner is that he along with the other accused assisted the accused 1 to 3 to inflict grievous injuries on the defacto complainant. The fact remains that the petitioner has been in judicial custody since 16.08.2024, the investigation in the case, so far as the petitioner is concerned, is practically complete and recovery has been effected. I also find that 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 since 16.08.2024, the investigation in the case is complete, recovery has been effected and that the petitioner does not  have  any  criminal  antecedents,  I  hold  that  the petitioner is entitled to be released on bail. Hence, I am inclined to allow the bail application.

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 them 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 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;

(iv) The petitioner shall not commit any offence while he is on bail;

(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 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].

(viii) The observations made in this order are only for the purpose of considering the applications and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts.